Congressional Record, Volume 149 Issue 115 (Wednesday, July 30, 2003)

[Congressional Record Volume 149, Number 115 (Wednesday, July 30, 2003)]
[Senate]
[Pages S10218-S10251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATIONS

Mr. KENNEDY. Mr. President, contrary to the widespread impression of
a partisan breakdown in the judicial nomination process, Democrats in
this closely divided Senate have, in fact, tried our best to cooperate
with the President on judicial nominations. We have largely succeeded,
even though there are a handful of nominees who we believe are too
extreme.
Since President Bush's inauguration, the Senate has confirmed 140 of
his nominees and so far blocked only 2. We have said ``no'' in those
cases partly because these few nominees were too extreme for lifetime
judicial appointments and partly because the White House and the Senate
majority have tried to jam the nominations through the Senate without
respect for the Senate's advice and consent role under the Constitution
and without respect for the Senate rules and traditions.
The nomination of Mr. Pryor illustrates all of these issues. Even his
advocates concede that his attitudes and beliefs are the very extreme
of legal thinking. I am confident that when the Members of the Senate
and the public fully understand and consider his prejudices and
attitudes, a majority of the Senate, with the strong support of the
public, will agree that he does not merit confirmation to a lifetime
seat on an appellate court that often has the last word on vital
issues, not only for the 4\1/2\ million people of Alabama but also for
the 8 million people of Georgia and the 15 million people of Florida.
In fact, this nomination does not belong on the Senate floor at this
time.
The Pryor nomination was reported out of the committee as a result of
a gross violation of the same committee rule of procedure which caused
the Cook and Roberts nominations to be held up in the Senate floor
earlier this year. The Judiciary Committee has a rule which clearly
prevents the termination of debate on a nominee unless a majority of
the committee, including at least one member of the minority, is ready
to vote on the nominee.
This rule, Rule 4, was adopted at the insistence of Senator Hatch,
Senator Thurmond, and other Republicans in 1979, when I was chairman of
the Judiciary Committee, as a reasonable protection for the minority.
After the rule was ignored in the Cook and Roberts case, we thought we
had resolved this matter amicably and equitably. Both nominees were
later confirmed based on a clear understanding that Democrats would not
in the future be deprived of their rule 4 rights.
After all, these rules were put in place at the start of this
Congress, with the support of the Republican chairman of the committee,
and now we have seen a blatant and flagrant disregard, which is not
just an issue of procedure but affects the substance of this issue in a
very important way.
Just as important is the reason why Democrats were unwilling to vote
on this nomination in the committee. The reporting of this nomination
was totally premature because the committee was forced to move to a
vote in the midst of a serious investigation of substantive questions
of candor and ethics raised at the hearing by the nominee's own
testimony, by his answers and non-answers to the committee's followup
questions.
On Friday, Chairman Hatch presented a version of the history of this
nomination and this investigation which does not comport with the
facts. I want to go through that history so the Senate can fully
understand that Democrats have proceeded expeditiously and responsibly
and that the rush to judgment in the committee last week was an effort
to cut off an important investigation. The full Senate deserves to know
its result before it considers this nomination.

The basic facts on this issue are straightforward. Democrats did not
invent the issue. Years before this nomination, lengthy articles in
Texas and DC newspapers raised the question of the propriety of the
activities of the Republican Attorneys General Association.
It was reported that the organization sought campaign contributions
to support the election of Republican attorneys general because they
would be less aggressive than Democratic attorneys general in
challenging business interests for violations of the law. Some
descriptions of this effort characterize it as a shakedown scheme. The
leaders of the association denied the allegation but refused to
disclose its contributors. They were able to maintain secrecy by
funneling the contributions through an account at the Republican
National Committee that aggregated various kinds of State campaign
contributions, thus avoiding separate public reporting of the
contributions or the amount of these gifts. The issue received
significant press coverage during the 2002 U.S. Senate campaign in
Texas especially since several Republican attorneys general have
denounced the association as fraught with ethical problems.
Since Mr. Pryor had been identified publicly as a leader of the
association's efforts and the ethical issues raised by it, these issues
are obviously relevant to his qualifications. Senator Feingold asked
the nominee about it at the June 11 hearing. Until this point in the
hearing, Mr. Pryor was, in Senator Hatch's own words, ``no shrinking
violet.'' He had been open and honest about his personal beliefs and
ideological views. He did not retreat a single step or hedge his
opinions. Nor were there any ``confirmation conversions'' taking new
views, contradicting old ones. Mr. Pryor was a model of outspokenness,
with clear recollections of the details of briefs, legal opinions,
speeches, and other complex legal issues.
Only on the issue of the Republicans Attorney General Association
were his statements cramped and fudged, his recollections virtually
nil. His answers were unresponsive and incomplete. They raise serious
questions about his candor and truthfulness. He was asked a broad
question reciting the allegations against the association. He was asked
whether, if the allegations of soliciting contributions from potential
target corporations are true, his own role in the association would
present at least an appearance of conflict of interest. His answer was
what would have been called a ``nondenial denial'' in the Watergate
days. He said the contributions were made to the Republican National
Committee, not to the association. He said that ``every one of these
contributions, every penny, was disclosed [by the Republican National
Committee] every month.''
The association's own materials show that its contributions were
being given to the association and that the writing of checks to an
aggregated account of the Republican National Committee was merely a
way to use a reporting loophole to mask the association's contributions
and the amounts of their gifts.
Even more startling, Mr. Pryor's assertion that every penny of the
contributions was disclosed by the Republican National Committee was a
clear misrepresentation. The fact is, the association and its members
have explicitly refused to disclose the contributions. Republican
National Committee reports did not mention any association funds, let
alone every penny. Mr. Pryor's statement raised a giant red flag.

Senator Feingold immediately told the nominee there would be followup
on this issue in written questions. On June 17, Senator Feingold and I
both asked the followup questions. We gave him an opportunity to review
the previous answers and make them more responsive. He refused. He
said: ``I stand by them.'' We asked about other details of the
association's operation and his specific role in it. Once again, his

[[Page S10219]]

answers were unresponsive and silent on key facts.
This careful lawyer could remember the most esoteric details of
complex legal cases going back many years but could not remember a
single company or person he himself had solicited for the association.
He could not recall whether any of the leading tobacco or other
companies identified by the President were contributors. He could not
remember the name of a single association member or contributor or
whether he had ever personally received any of the campaign funds.
Typical was this question and answer: I asked, ``To the extent that
the RAGA designated system funds were transmitted to or through another
entity, did that entity disclose publicly the funds raised by or for
RAGA?''
His answer was a non-answer: ``To my knowledge, RAGA complied with
all the applicable campaign laws and its operations.
He later said, ``I never solicited for RAGA a contribution from any
person who has been the subject of an investigation or legal action of
my office.'' He refused to say whether someone else on behalf of the
association had made such solicitations. He refused to say whether
contributions came from companies his office might have investigated,
but did not.
These issues that were raised about the telephone companies, about
the calls, about the meetings, about the breakfast meetings, who was
there, have all been left open. There is strong evidence that is in
conflict with what the nominee has presented. This is part of the
committee's work in terms of the future, to get to the bottom of this,
in fairness to the nominee and so that the Senate will be able to make
its judgment.
Senator Hatch's floor statement made much of the number of times the
Pryor nomination appeared on the committee's agenda. In fact, the Pryor
nomination was on the agenda for June 19 but the listing was obviously
premature since the answers to our questions had not even arrived. The
answers were received on June 25. Again, Pryor was placed on the agenda
for the next day, but before any of us had a chance to examine his
intricate web of answers, partial answers and non-answers. The
nomination was obviously not even close to ready for consideration.
Even our first look at the answers made clear there would have to be
further investigation, more followup questions. Even Senator Hatch
realized proceeding the next day would be inappropriate.
By this time, Pryor's statements had been widely reported and had
come to the attention of many people who knew the facts and some who
might cast light on the facts that Mr. Pryor could not recall. On July
2, during the Fourth of July recess, just before the long holiday
weekend, extensive new material from one such source arrived at the
minority office in the committee. After a brief initial review to
assess the authenticity and relevance, the material was turned over to
the majority staff when the Senate returned from the recess. At the
same time, the chairman's staff was fully briefed about the process by
which the materials had reached the committee.

Then, contrary to the chairman's floor assertion, a bipartisan group
of investigators questioned the source of material in detail. No
question was raised about the authenticity of the materials. On the
contrary, when the joint staff shortly thereafter interviewed the
author of the document, she confirmed the source had full access to
them.
The material was then distributed by each side to each member. After
reviewing the documents, the minority requested that a bipartisan
investigation be conducted. That investigation was to begin July 15,
with calls to the association's former finance director and executive
director. Until then, not a single document had been disseminated
outside the committee.
However, on that day, the majority gave the documents to the nominee
and to the Justice Department. Someone on the Republican side gave them
to a strongly pro Pryor columnist on the Mobile Register newspaper. The
columnist called the former finance director, a close Pryor ally and
former campaign director. That call was made before the investigators
could reach her, warning her that she could expect a call from the
committee staff. Although the call to her did produce some useful
information, it also marked the beginning of a consistent effort by the
majority investigators to interfere with the investigation.
After the interviewee stated that she might well have the files of
the association, the Democratic investigator requested she provide them
to the committee. The Republican investigator told her not to comply
with the request and not even to comply with the request to at least
begin searching for association materials in her possession.
The Mobile Register columnist disclosed and discussed the documents
on July 16, and others in the press wrote about them on the 17th. The
committee had a brief discussion of the documents on the 17th with the
expectation that the just started investigation would continue on a
bipartisan basis in accordance with an investigative plan provided to
the majority.
However, at that point, the Republican investigative staff began
informing the interviewees that the calls to them were not part of an
official committee investigation, implying that they did not have to
cooperate.
Between July 17 and July 23, many calls were made in accordance with
the plan. Many of these calls did not reach the parties called.
By the time of the committee's meeting scheduled for July 23rd, the
investigators had just begun accumulating significant information in
accordance with the investigation plan. The day before the meeting, all
nine Democrats, having considered the information available up to that
point, wrote to the chairman and informed him that the investigation
was producing serious and disturbing information, that it would require
substantial addition time, that his investigators were interfering with
it, and that after it was complete, we would want to question the
nominee under oath.
The Republican staff had offered interviews with the nominee before
that time, but the Democratic investigators had declined to participate
until the basic investigative work had been done, and in any event, the
Democratic members wanted to question the nominee in person under oath
at the appropriate time.
At the meeting on July 23, the chairman rejected the minority's
request out of hand. He insisted on a vote on the nomination without
completion of the investigation and without further questioning of the
nominee under oath. That was the situation when Senator Leahy invoked
the committee's Rule IV to prevent a premature vote on the nomination.
The chairman refused to follow Rule 4 and insisted on an immediate
vote.
The nine Democrats on the committee voted against reporting the
nomination, and the 10 Republicans voted to report it, with one member
of the majority noting that his vote to report did not mean he would
necessarily vote for the nominee on the floor. He also noted that he
would want to review the results of the investigation with the nominee
before any floor vote.
Despite the lack of co-operation from the majority staff, the
investigation has continued. It has developed new information which
expands both the scope and the gravity of the original concerns. It
tends to show not only that the nominee was not candid with the
committee, but that his statements may have been intended to obscure
facts that would raise extremely serious ethical or legal questions
about the nominee's activities.
I raise these points because the chairman has suggested that these
issues are not serious. They are very, very serious. I do not know how
it will ultimately come out after the investigation is complete, but as
I said in committee, the nomination comes to the floor with a ticking
ethical time bomb which might explode at any moment.
There is no doubt that this nomination is not ripe for a vote of the
full Senate. The committee majority was not willing to finish its job
before reporting the nomination to the Senate. But that is no reason
for the Senate to allow the nomination to be voted on, before these
matters are thoroughly reviewed, and the nominee has responded.
On the issue of the merits, Mr. Pryor is simply too ideological to
serve as a Federal court judge. The concern is not

[[Page S10220]]

simply that Mr. Pryor is a conservative. The question is not whether
all of us agree with his views. Mr. Pryor's litigation positions,
public statements and his writings leave little doubt that he is
committed to using the law not simply to advance a ``conservative''
agenda, but a narrow and extreme, ideological agenda.
Mr. Pryor's record is clear. He is an aggressive supporter of rolling
back the power of Congress to remedy violations of civil rights; he is
a vigorous opponent of the constitutional right to privacy and a
woman's right to choose; he is an aggressive advocate of the death
penalty, even for individuals who are mentally retarded. He is
contemptuously dismissive of claims of racial bias in the application
of the death penalty. He is an ardent opponent of gay rights.
More than just disagreeing with much of the Supreme Court's
jurisprudence over the last 50 years on issues such as privacy, the
death penalty, criminal justice, and the separation of church and
state, Mr. Pryor has dedicated his advocacy and litigation to rolling
back widely accepted legal principles and laws. What we know about Mr.
Pryor leaves little doubt that he will try to advance that agenda if
he's confirmed as a Federal judge.
At his hearing and in answers to written questions, Mr. Pryor, for
the most part, adhered to his past, extreme, views. He did not renounce
his view that the Supreme Court's decisions in Miranda v. Arizona and
Roe v. Wade were the worst examples of judicial activism or that the
Roe decision was an abomination. What are we expected to believe? That
despite the intensity with which he holds these views and the years he
has devoted to dismantling these legal rights, he will still ``follow
the law'' if he is confirmed to the Eleventh Circuit? Repeating that
mantra again and again in the face of his extreme record does not make
it credible that he will do so.
We know the cases that Mr. Pryor has won at the Supreme Court to
narrow Federal rights, and the effect of these cases on the lives of
disabled workers--of breast cancer victims like Patricia Garrett--and
of the many older workers who face discrimination by State agencies.
Mr. Pryor's agenda is more far-reaching. He has consistently
advocated views to narrow individual rights far beyond what any court
in this land has been willing to hold.
Just this term, his radical views were rejected by the Supreme Court.
In its recent term, the Supreme Court rejected his argument that States
could not be sued for money damages for violating the Family and
Medical Leave Act. The Court rejected his argument that States should
be able to criminalize private sexual conduct between consenting
adults. The Court also rejected his far-reaching argument that counties
should have the same immunity from lawsuits that States have.
What is more disturbing, Mr. Pryor has plans for narrowing Federal
power far beyond the Supreme Court's current case law. The Supreme
Court has held that Congress has broad power under the spending clause,
but Mr. Pryor's agenda would restrict Congress's power under that
clause. He has praised a district court's decision to limit the ability
of individuals to enforce spending clause statutes. That decision would
have reversed more than 60 years of Supreme Court precedents, and it
was rejected unanimously by the Sixth Circuit. Seventy-five
constitutional law scholars had joined a brief opposing the decision.
Yet, Mr. Pryor said that the District Court decision was ``sublime''
and ``brilliant.''
He has even argued in a race discrimination case that Alabama should
not be subject to a lawsuit under title VII of the Civil Rights Act of
1964. That argument was unanimously rejected by the Eleventh Circuit,
because it would have reversed decades of settled Supreme Court law. It
shows how far he would go--trying even to limit Federal power to
address race discrimination under the 14th amendment, even though
combating race discrimination is the amendment's very purpose.
These examples rebut the notion, repeatedly urged by Mr. Pryor's
supporters, that Mr. Pryor is simply ``following the law'' or that his
views are within the mainstream. Again and again his statements and
litigation positions make clear that his agenda to ``make the law'',
and again and again his radical views to change decades of Supreme
Court jurisprudence are rejected by the Federal courts.
Mr. Pryor even seems to resist the application of Supreme Court
decisions with which he disagrees. In 2002, Mr. Pryor authored a
friend-of-the-court brief to the Supreme Court arguing that it did not
violate the eighth amendment to execute people who are mentally
retarded. The Court rejected his argument by a 6 to 3 vote in Atkins v.
Virginia. Yet this past May, Mr. Pryor attempted to prevent a prisoner
with an IQ of 65--and whom even the prosecution had noted was mentally
retarded--from raising a claim under Atkins. The Eleventh Circuit
unanimously rejected Mr. Pryor's arguments, and stayed the execution of
the Alabama prisoner.
Do you call that mainstream? Judicial mainstream?
Mr. Pryor does not simply advocate these views in public life. He has
used his position as Attorney General to advance his own ideolgical
agenda. His State was one of only three States to submit an amicus
brief in support of Texas in the Lawrence case on gay rights. His
restrictive view of the constitutional right of privacy and his
argument that States should be allowed to criminalize homosexual
activity were rejected by the Supreme Court in its decision last month.
He was the only State attorney general--with 37 on the other side--to
submit an amicus brief opposing the remedy in the Violence Against
Women Act. He was the only attorney general to argue to the Supreme
Court that Congress has no power to make provisions of the Clean Water
Act enforceable against the States.
Do we understand now? He was the only State attorney general, with 37
on the other side, to submit an amicus brief opposing the remedy in the
Violence Against Women Act; the only attorney general to argue to the
Supreme Court that Congress has no power to make provisions of the
Clean Water Act enforceable against the State. He had ridiculed the
Supreme Court of the United States for granting a temporary stay of
execution of a prisoner in a capital case who even the prosecution had
noted was mentally retarded. The Eleventh Circuit unanimously rejected
his arguments and stayed the execution of the Alabama prisoner, and the
proponents of this nominee say he is in the mainstream? The mainstream
of thinking?
Mr. Pryor has vigorously opposed gun control laws. He says the
victims of violence who sue gun dealers or manufacturers failing to
follow the Federal law are ``leftist bounty hunters.''
He filed an amicus brief for the State of Alabama opposing a law
limiting possession of firearms.
In this case, a Federal district court judge dismissed an indictment
against a man in Texas who had possessed a firearm while under a
restraining order for domestic violence, in violation of Federal law.
The judge ruled that the law violated the second amendment. Alabama was
the only State to file an amicus brief in the Fifth Circuit. The brief
broadly argued that the Federal Government's interpretation of the
statute was so broad that it constituted a ``sweeping and arbitrary
infringement on the second amendment right to keep and bear arms.''
Mr. Pryor's argument went far beyond what the Fifth Circuit or any
other court has held. The concern is that here again Mr. Pryor was
using the attorney general's office in Alabama to advance his own
personal ideological agenda in a Texas case, and that he will continue
this mission if his nomination is confirmed.
What he was trying to intervene on was the fact that you have a law
that restricts the ability for someone to bear an arm who is under a
restraining order for domestic violence. Do we understand this? State
law has said people who are under restraining orders for domestic
violence should not bear arms. Attorney General Pryor is saying, ``Wait
a minute. That violates the second amendment.'' And we are saying that
this is in the mainstream of judicial thinking? A State law says that
when you have domestic violence and an individual is under a
restraining order, that individual can't bear arms. He is trying to
override it and you say that is in the mainstream?

[[Page S10221]]

Mr. Pryor has ridiculed the Supreme Court of the United States for
granting a temporary stay of execution in a capital punishment case.
Alabama is one of only two States in the Nation that uses the electric
chair as its sole method of execution. The Court granted review to
determine whether the use of the electric chair was cruel and unusual
punishment. For Mr. Pryor, however, the Court should not have even
paused to consider this eighth amendment question.
Listen to this. He stated that the issue ``should not be decided by
nine octogenarian lawyers who happen to sit on the Supreme Court.''
He stated that the issue ``should not be decided by nine octogenarian
lawyers who happen to sit on the Supreme Court'' of the United States.
Talk about respect for the law and respect for the Supreme Court. All
of us know that the courts may support our views at times. We may
differ with the other courts. We just saw this in recent times when
they made a decision on the outcome of an election. Many had concerns
about it. It was supported by the American people because of the great
respect that we have for the Supreme Court. And he is talking about
``nine octogenarian lawyers who happen to sit on the Supreme Court.''
Mr. Pryor's many inflammatory statements suggest that he lacks the
temperament to serve as a judge. He is dismissive of concerns about
fairness and racial bias in capital punishment. He has stated: ``make
no mistake about it, the death penalty moratorium movement is headed by
an activist minority with little concern for what is really going on in
our criminal justice system.''
Many of his statements reflect an alarmingly politicized view of the
judiciary--hardly appropriate for someone who wants to serve as a
Federal judge. In a speech to the Federalist Society, he praised the
election of George Bush as the ``last best hope for federalism'' and
ended his speech with these words a ``prayer for the next
administration: Please God, no more Souters.''
That is obviously a derogatory remark about a very distinguished
jurist, Justice Souter.
He was thankful for the Bush v. Gore decision because, as he said,
``I wanted Governor Bush to have a full appreciation of the judiciary
and judicial selection so we can have no more appointments like Justice
Souter.''
I hope that his nomination will be rejected.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. KENNEDY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Madam President, is the Senator from New Mexico
recognized?
The PRESIDING OFFICER. Yes, the Senator is recognized.
Mr. DOMENICI. Madam President, I conferred with the majority leader,
and he is thinking about the situation we are in. I would like to chat
for a little bit as one who greatly appreciates the Senate, the
committees, and the jobs we all have and the job I have.
While the majority leader is thinking about matters and deciding what
to do, I want to talk a little bit about the situation.
First of all, let me say there is no question that the United States
of America needs an Energy bill and needs an Energy bill sooner rather
than later. We have already passed the time to have an Energy bill. As
far as I am concerned, whatever this interference of a judge and a
judge's vote and Senators on the other side of the aisle wanting to
speak, the way I look at it, I would let them all do it. In fact, I
would say to the Democratic Members of that committee, why don't you
all speak? I would set up the vote on the judge at the earliest
possible time under the rules, and let them speak if we have to stay
here all night. Let them all speak. Then we will have the judge out of
the way sooner than later. Then we would just say to everybody, fine.
One day we were supposed to be debating the Energy bill and we debated
the judge, so we will stay here an extra day. I would just say, let's
start tomorrow, and after you talk for the next 9 hours, instead of
working on the Energy bill, let us go to work and let us do the Energy
bill. That might mean instead of Friday we would be here Saturday. We
would just substitute one day called Saturday for a day called
Wednesday. Wednesday was the day we ought to be working on the Energy
bill, but there has been a decision to speak to a very important
subject which the other side of the aisle has thought to be very
important, and that is their privilege. They think it is important to
talk about a judge. I think it is important that we in fact get an
Energy bill. I think there is only one way to do both of them. That is
to let the Democrats talk as long as they would like. If they want to
talk now, or want to talk for the rest of the night, or want to talk
right up until the time we are supposed to vote, then sooner or later
that vote will be over. That will be one of the jobs we have in front
of us.
Then I would turn to the next job we have, and that is the Energy
bill. If we don't get to that until tomorrow morning, we will then be
on the Energy bill. Then we will decide how much time we want to take
on the Energy bill. Then the public will know where we are.

Everything will have been done: Democrats will have gotten to talk
all they wanted on a judge and the Republican leader will have brought
up the judge and the Senate having voted on the judge--whatever
happens, a cloture vote, approval, nonapproval, but the vote will be
over, and we will be back on the Energy bill. Then we will have nothing
else before us.
Straightforward, looking out to the public of America, looking across
the aisle to our friends and saying: You had it your way. Now, are we
ready? Are we ready to go and finish the Energy bill the American way?
You can't have both of them. You can have one or the other. You can
have one at a time but you can't have both at the same time.
So I think it is pretty easy. I don't think it is the only way,
though. I think the majority and minority leaders can, in fact, reach
an agreement. That is not the business of the Senator from New Mexico
but I believe they could reach an agreement.
Let me repeat, if nobody wants to agree, and the Democrats want to
talk--and they have told us absolutely they have the right to talk, not
about the Energy bill, about a judge. And I am not being critical.
There is a judge nominee who they claim they want to talk about. I
think they ought to talk about it. I think they ought to talk right up
until the time we vote. But sooner or later we will vote on that judge
and then we ought to come back to the Energy bill. Then we can tell the
public, clear and simple, there is no judge in the way, there is
nothing in the way. Here we are, full speed ahead.
We have as many days as we need. We have Friday--well, that would
still only be Thursday. We have the rest of Thursday. We have Friday.
We have Saturday. Then certainly some people would not want to work on
Sunday but then we could come back Monday. If the Democrats think we
need 4 more days, we could have 4 more days.
I, frankly, believe, without any doubt, you can finish this Energy
bill in a day and a half, and people can have all the time they want on
important matters--maximum, 2 but you can finish it in 1\1/2\ to 2
days.
So from this Senator's standpoint--I repeat, I do not speak for
anyone but myself as the chairman of the Energy Committee and someone
who has worked pretty hard to get a bill I think is pretty good but
that I would like to take to conference someday with the House and get
an Energy bill for the country. This bill does not please everybody but
it is pretty good.
I have been pondering it, but I think probably the best thing to do
is to make arrangements to do them both, to do the judge and to do the
bill. If that is what the other side wants, to take the time that I
think belongs to the Energy bill so they can speak, I would say, let
them do it. But that time will end. When that time ends, we go to the
Energy bill and then there will not be any excuses--that will be it.
Whatever are the amendments--my friend, the whip, has told me there
are three or four more on the electricity

[[Page S10222]]

section--let's have them. We can do them whenever that time comes that
I have just described, one after another, just like we have done. None
have passed yet. That is not to say some will not in the future.
Then we will go to the other ones, three of which are important to
people but that do not even belong on this bill. And they are
important. They are going to take a lot of time. They literally do not
belong on this bill.
So I have spent a lot of time so far. I am willing to spend a lot
more. I don't think it needs 3 more days of the time of the Senator
from New Mexico. I think it needs 2 days. But I can't do that so long
as the other side wants to talk about a judge. I can't do both. The
public ought to know that. It just can't be done.
Having said that, let me repeat, let's do both. But let's have an
understanding that when we are finished with the judge--and the
Democrats will have had all the time they needed to talk about the
judge; and that is fine; we have the ranking member here; he might want
to talk about him--then we will go to the Energy bill, and we will stay
here Friday and Saturday and Sunday and Monday and finish the Energy
bill.
I yield the floor.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Nevada.
Mr. REID. Mr. President, as the distinguished Senator from New Mexico
said, the public should know. The public should know the following: The
last 4 weeks the distinguished majority leader has been saying we are
going to complete the Energy bill in 1 week. For 4 weeks, the minority
has said: We cannot do that. There is not enough time to do that.
Last year, when we worked our way through this bill, there were 140-
some odd amendments. This year, we have had stops and starts on this
bill. The majority leader said we have been on it 16 days. Everyone
knows that is simply not factual. We have been on it days but these
were Fridays and Mondays when nothing was going on here.
Now, the public should know that in addition to having a difficult
time finishing this bill in 1 week, the majority leader has made the
decision to schedule votes on judges.
The public should know that the vote we took today on Miguel Estrada
was the seventh time we have voted on this judge. There has not been a
single vote change all seven votes but yet the valuable time of the
Senate was taken on this wasteful exercise.
We also voted, for the third time, on Justice Owen from Texas. Votes
have not changed on that. Also, another waste of time.
My friend from New Mexico says: Well, let's finish the debate on
Pryor and then go to energy. The problem with that is, we have been
told there is going to be another cloture motion filed on a judge.
There has been no time spent on the floor on her, either, a woman from
California by the name of Kuhl. So using the logic of the Senator from
New Mexico, then we would take and debate all day Thursday, and some of
Friday, prior to the vote on that.
We have not caused the stops and starts on this bill. Not only have
we had stops and starts dealing with judges, which have slowed this up
immensely, but we also have had thrown in here two trade bills, the
Singapore and Chile trade bills. We still have 6 hours to complete on
that debate.
The public should know there is not a single Democrat who opposes an
Energy bill. We think this Energy bill is imperfect and there should be
amendments filed on it. We have not filed a single amendment that has
been, in any way, an effort to slow down this bill. There have been
meaningful and important debates, and every vote has been extremely
close. Had there been not arm-twisting on the other side on the
Cantwell amendment and the Feingold amendment--people in the well
wanted to vote with us but did not. As we know what happens down here
in close votes, they were unable to vote with us.
These are not meaningless amendments. They have been very important
amendments. As I have explained on several occasions, we have other
amendments that are just as meaningful as these that have been filed.
We have also heard my friend from New Mexico say: We want to do this
the American way. I don't know what that means. But that is what this
is. We are in the Senate and we are doing things the American way, as
established by the U.S. Constitution. That is how we are going to do
things.
We did not make the decision to have the parliamentary posture as it
is. That has been made by the majority leader. He has a right to do
that, but he also has the obligation to know that the stops and starts
on this Energy bill has made it virtually impossible to pass this bill.
Now, to have threats made--and that is what they are: You are going
to be here Friday afternoon; you are going to be here Saturday, Sunday,
Monday, Tuesday--well, that is the way it is. But always remember, any
inconvenience that is caused to the Democrats will be caused to the
Republicans also. Remember, there are two more of them than there are
of us, so they will have a little extra inconvenience.
But this Senator and all 48 other Senators who are here in the
minority are willing to work to complete whatever work needs to be
done. But we are not going to be rushed into voting for a judge such as
the man from Alabama who has been hustled out of the Committee of the
Judiciary without proper debate in the committee itself. We are going
to have proper debate in the Senate. We are going to have the American
people know because the public should know. We are going to do it the
American way.
We are going to hear the ranking member of the committee, who, by the
way, has been responsible for our approving, during this
administration, 140 Federal judges.
We have turned down two. The American public should know that. That
is the American way. One-hundred and forty to two isn't that bad.
Anybody who has a basic knowledge of math understands those are pretty
good odds.
There is also a complaint that the distinguished ranking member has
requested votes on some of these judges. Well, yes, and we have six
judges now who could have been approved during the 4 hours we are going
to be wasting on these cloture votes. In fact, we probably could have
done all of them in the 4 hours set aside. Of course we could have.
The plaintive cries create no pity on our side. We are here ready to
work on the Energy bill. If they don't want Senators from the Judiciary
Committee and others speaking about Pryor, then let's not have a
cloture vote tomorrow. Let's not have a cloture vote on Kuhl on Friday.
We can spend more time on the Energy bill.
Until the majority leader understands that he is his own worst enemy,
we are going to continue what we are doing to protect the rights of the
American people because the public should know.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I must say I completely agree with the
senior Senator from Nevada on this. The senior Senator from New Mexico,
who was in the Chamber, expressed concern about time being taken
talking about William Pryor's nomination. We are not the ones who
scheduled William Pryor's nomination in the middle of the Energy bill.
The distinguished senior Senator from Utah, chairman of the Senate
Judiciary Committee, is in the Chamber. He knows the concerns expressed
by members of the committee that this nomination was voted out of
committee before investigations underway involving Mr. Pryor were
completed.
It is passingly strange that when we say that after the nomination
has been moved prematurely out of the Senate Judiciary Committee with
pending questions, very serious questions involving the conduct of that
nominee unresolved, but it gets sort of rocketed onto the floor. Then
we are asked to lie down and just let it go through without even saying
why we object.
First, the rules of the Senate Judiciary Committee itself were
violated. Rule 4 was violated. The matter is still coming up. The
distinguished majority leader and the distinguished Democratic leader
had a conversation in which the distinguished majority leader assured
us that this would never happen again. Within a few weeks of that
assurance, it happens again, an assurance that no nomination of this
nature would come up if it was sent out

[[Page S10223]]

in violation of rule 4 of the Senate Judiciary Committee. It was. The
nomination is up. And we don't ask questions about it?
Then we hear some on the other side say: Our judges are being
blocked. Well, it is true; 2 out of 140 have been. But at the same
time, they want to quietly voice vote all these other judges through so
that nobody will notice that we are passing judges. One of the reasons
we have asked for rollcall votes on a number of them is to show how
easy it is to pass a judge where there is a consensus.
In those rare instances where people have actually been consulted
about a judge and where a judge has been nominated who is not going to
be an ideological arm of either political party but, rather, be an
independent judge, they go through easily.
In this case, the Republican leadership--not the Democratic
leadership, the Republican leadership--filed a cloture motion on the
nomination of William Pryor to the Eleventh Circuit. So we are going to
have this premature debate.
I hope there is one aspect on which we can get closure in the Senate.
In connection with this nomination, supporters of the administration
have leveled the unfounded charges that Democratic Senators are anti-
Catholic. This charge is despicable. I have waited patiently for more
than 2 years for Republican Senators to disavow such charges. So far,
only one has, the distinguished Presiding Officer. This is a
despicable, slanderous charge. It is one calculated to throw us back
into a time that maybe some in this Chamber may not remember. Some of
us have parents who do remember when anti-Catholic bias ran rampant in
this country.
It is outrageous, of course, that Republicans will not knock down
these slanderous charges of anti-Catholicism and allow them to go
forward. This slander and the ads recently run by a group headed by the
President's father's former White House counsel and a group whose
funding includes money raised by Republican Senators and the
President's family are personally offensive. They have no place in this
debate or anywhere else.

For a charge of anti-Catholicism to be leveled against any Member of
this Chamber, Republican or Democratic, is wrong. But for those who
stay silent and allow it to go forward, who take part in it, the only
way for a lie to get traction is for people to remain silent. And those
who could stop this lie in a hurry remain silent.
I challenged the Republican Senators on the Judiciary Committee who
are so fond of castigating special interest groups and condemning every
critical statement of a Republican nominee as being somehow a partisan
sneer, to condemn this ad campaign and the injunction of religion into
these matters. Only the junior Senator from Georgia now presiding
responded to that challenge. Other Republican members of the Judiciary
Committee and of the Senate have either stood mute in the face of these
obnoxious and disgusting and scurrilous charges or, worse, they have
fed the flames.
Today, Republican Senators have another chance to do what they have
not yet done and what this administration has not yet done--disavow
this campaign of division and those who have played wedge politics with
religion. I hope the Republican leadership of the Senate and of the
Judiciary Committee will finally disavow the contention that any
Senator is being motivated in any way by religious bigotry, just as I
and others on this side of the aisle have defended members of the
Republican side of the aisle when they have been attacked on their
religion. We find it so painful that not only do they remain silent
when people on this side of the aisle are attacked on their religion
but in some instances have even continued the attack in statements they
have made outside this Chamber.
When we began debate on the nomination of Miguel Estrada in February,
I made a similar request with respect to the charges that Senators were
being anti-Hispanic. The other side never withdrew that ridiculous
charge. Instead, the special interest groups and others trying to
intimidate the Senate into voting on that nomination broadened the
attack to include Hispanic members of the Congressional Hispanic
Caucus, MALDEF, the Puerto Rican Legal Defense and Education Fund, past
presidents of the Hispanic National Bar Association, and many other
Hispanic and civil rights organizations that opposed the Estrada
nomination. It was so bad that one Hispanic organization that supported
Miguel Estrada issued a statement that the charge was wrong, that they
certainly didn't believe it applied to any Member of the Senate, and
urged the Republicans to stop it.
They didn't, but they were urged by other Hispanic groups to stop it.
The demagoguery, divisive and partisan politics being so cynically used
by supporters of the President's most extreme judicial nominees needs
to stop. There are at least five judicial nominations on the Executive
Calendar on which we can join as Democrats and Republicans. I would be
willing to bet that they would be confirmed by an overwhelming vote.
I remember when we had a circuit court of appeals judge nominated by
President Bush. For a month, the Democrats tried to get a vote on that
nominee. For a month, one Republican had an anonymous hold and refused
a vote to go forward. There are people we could vote on. Why don't
they? We took a month to get the Republicans to release the anonymous
hold on Judge Edward Prado, who was nominated by President Bush.
Interestingly enough, I finally found out why. They didn't want a vote.
They wanted to attack us for not voting on him, even though we were the
ones asking to vote on him. It is Alice in Wonderland to the tenth
power.
Now, the assistant minority leader suggested going to these matters
and making progress. I have suggested scheduling rollcall votes on
these nominees and making further bipartisan progress. Instead, we
waste time on cloture motion after cloture motion after another cloture
motion in connection with the most controversial of this President's
nominees. Now I find out why. I am told by members of the press that
the Republicans said this was supposed to be our issue this week. We
are not getting appropriations bills done, we are not going to finish
the Energy bill, or do anything else, so we are going to tie up the
Senate with a number of cloture votes. Then they all went out with
their talking points with members of the press to tell them how
terrible it was that we were having these votes, which they scheduled.
Mr. DORGAN. Will the Senator from Vermont yield for a question?
Mr. LEAHY. Yes.
Mr. DORGAN. I listened to some of the complaints on the floor
recently while I was in my office. They were concerned about not moving
ahead on energy. I guess the obvious question is--we didn't bring up
the judge; we are not requiring a vote on the judge; we are not
requiring a vote on the trade agreements; and there is no requirement
to vote on the trade agreements this week. There is no requirement to
vote on this judge this week. So isn't the proposition that those who
are scheduling this place, who insist on a vote on a judge, insist on
bringing up trade agreements in the middle of the discussion on energy,
isn't that what is causing the delay?
Mr. LEAHY. Mr. President, the Senator is absolutely right. The
distinguished assistant Democratic leader pointed out just a short
while ago that we have had a number of votes on the Energy bill, which
were very close votes, which could have gone either way. We had a good
debate going and we were actually voting. Now, instead we spend more
time in quorum calls and bringing up judicial votes that are not going
anywhere.
I must say to my friend from North Dakota, as ranking member of the
Judiciary Committee, if we would have taken the time that has been
wasted on things not going anywhere, if we had taken time to vote
through some of the judges, where I believe we could get consensus of
both Democrats and Republicans, and vote and confirm them and let them
go to the bench, that would be a better way. We spent a whole month, as
I mentioned, trying to get the Republicans to allow a vote on Judge
Edward Prado for a circuit court of appeals position. He had been
nominated by President Bush and was strongly supported by President
Bush. For a month, they blocked it from going to a vote. We found out
afterward it was because they went to the same members of the press
they have

[[Page S10224]]

gone to this week and they said: This is terrible. The Democrats aren't
allowing us to vote.

Democrats, time after time, came on the Senate floor and said we can
have unanimous consent to go to a vote, and they objected.
Mr. DORGAN. Mr. President, further inquiring of the Senator from
Vermont, is it the case, then, that there are judge candidates that
could be brought to the Senate floor without any controversy at all,
which would require very little time? Those are not the ones brought to
the floor. Very controversial nominations are brought to the Senate
floor, and complaints arise because someone wants to debate it. Isn't
it the point that we didn't bring this judgeship to the floor for a
cloture vote?
Mr. LEAHY. No. In fact, I say to my friend that the one time we did
try to bring one of President Bush's circuit court nominees to the
floor and ask to have him considered, for a month we were not allowed
to because the Republicans objected. I have not done a whip check, but
I am willing to bet that if we brought them to a vote, and they are on
the calendar now, they would get confirmed. Even in the time we have
had quorum calls and discussions on this today, we could have brought
them up and had a series of 10-minute rollcall votes. And I am willing
to bet we would have passed them all.
Mr. DORGAN. The Senator indicated we were dealing with very important
issues today. Indeed we were. I mention the Cantwell amendment, which
lost by two votes. It was a very significant amendment which I think,
in the rear view mirror of public policy, will turn out to be one of
the most important amendments turned down by the Senate dealing with
energy.
We know what is happening on the west coast. Firms bilked people out
of billions of dollars. There is substantial criminal investigation
still ongoing and the proposition today on the Energy bill was
important: Will there be adequate protections for consumers, and will
we do something about the scandals that occurred on the west coast and
stand up and support the interests of consumers and prevent
manipulation of energy markets? That amendment failed by two votes.
There was a significant debate, a big amendment. These are big,
important issues.
The question is, Why are we not continuing to work on the Energy
bill? What interrupted it? Have we done that or has someone else
brought something else to the floor of the Senate?
Mr. LEAHY. Mr. President, I answer my friend from North Dakota that
we have been willing to move forward on amendments on the Energy bill.
We are not the ones who brought up the extraneous cloture votes which
are not going anywhere. Maybe some want to get off the Energy bill. I
note that the distinguished Senator mentioned Senator Cantwell's
amendment. I was very proud to support that amendment. It was excellent
and, as the Senator said, it would protect the consumers.
It was interesting because, at one point, she had the amendment won,
and you heard the snap, crackle, and pop, not of Rice Crispies but the
arms being twisted and snapped as votes were being changed. Most of the
power company lobbyists were saying to the leadership on the other side
that you cannot allow that to go through, and votes were being changed.
It came within two votes.
I agree with the Senator from North Dakota that people are going to
look in the rear view mirror and say Senator Cantwell was right, and
that should have been allowed to go through.
Mr. DORGAN. If the Senator will yield further, and I am sorry to
continue to inquire, at this point, is there a cloture vote that is now
scheduled on Mr. Pryor? Is there a vote scheduled and, if so, when is
it scheduled?
Mr. LEAHY. Mr. President, it is scheduled for tomorrow under the
normal circumstances, unless there has been an agreement entered into
otherwise. That would be an hour after we come into session. Unless the
established quorum is waived, we could go to a vote.
Mr. DORGAN. Mr. President, I inquire further, if a cloture motion has
been filed and it ripens tomorrow and we presumably would have a
cloture vote on this nomination tomorrow, for those tonight who are
concerned about not moving ahead on energy, we could resolve that by
vitiating the cloture motion vote tomorrow.
I was sitting in my office listening to those complaining that we are
not moving ahead on energy, understanding it was not us who brought
this judgeship forward. We did not put forward the proposal that we
have to do two free-trade agreements this week.
It seems to me, at least with respect to the judgeships, perhaps what
ought to be done is unanimous consent ought to be entertained to
vitiate the cloture vote tomorrow on this judge and move on. After all,
there is no reason that we have to vote on this judge tomorrow. This
nomination has not been waiting a great length of time. It can be done
in September. For those who are worried about moving ahead on energy--
and we should--it seems to me what we probably ought to do is join
together and vitiate this cloture vote, move on, and continue with the
Energy bill tonight. Does the Senator think that is an appropriate
course?
Mr. LEAHY. Mr. President, I tell my friend from North Dakota, not
only would it be an appropriate course because cloture is not going to
be invoked primarily because, for one major reason because of his
qualifications, but also because the rules of the Judiciary Committee
were not followed in having this nomination go out.
We could very well at that time, if we want to get judges through,
not have this cloture vote, which is not going to go anywhere. We have
James Cohn, of Florida. During this time we could have voted on him to
be a judge. We could have voted on Frank Montalvo, of Texas. These are
nominees I would support and I think a majority of us would support.
Xavier Rodriguez, of Texas, could have been voted on. The Republicans
have made no effort to bring them up, even though we told them they
could. H. Brent McKnight, of North Carolina--these are people we would
allow to being brought up. We would allow the home State Senators to
take a few minutes to speak about them. In fact, they could bring them
all up and do them in a stack of 10-minute rollcall votes. They would
have gone through in the amount of time of some our quorum calls today.
Mr. DORGAN. Mr. President, if I may address the Senator from Vermont
with one final inquiry, it seems to me if the issue in the Senate is we
have limited time and we have a substantial amount of work to do on
energy--I was at the White House yesterday. President Bush called a
number of us down to the White House to talk about the urgent need to
pass this Energy bill. If that is, in fact, the case--and I believe it
is and the majority leader has said it is--in order to get back on this
Energy bill, it seems to me what we should do--and I encourage the
majority leader to do this--is vitiate the cloture vote on the
judgeship. We do not need to do it this week. We all know we do not. He
can decide we do not have to bring up the two free-trade agreements
this week. There is nothing urgent about those agreements. That need
not be done this week.
If the President is correct--and I believe he is--and if the majority
leader is correct--and I believe he is--that this Energy bill ought to
move, it is urgent public business, then let's move back to the Energy
bill and do it now. I encourage the majority leader to make that
decision.

Mr. SANTORUM. Will the Senator from Vermont yield?
Mr. DORGAN. The Senator from Vermont has the time. I thank the
Senator from Vermont for yielding to me. I, again, say to the majority
leader, I do not want to hear people complaining about the fact that we
are not on the Energy bill. We are not making progress on the bill
because the majority leader and others said we have to move to the
judgeships and then move to the trade agreements.
The fact is, they are the ones taking us off the Energy bill, not us.
We ought to offer the next amendment right now on the Energy bill and
vitiate the cloture vote tomorrow morning on the judgeship. That will
solve the problem.
The PRESIDING OFFICER. The Senator may yield for questions but not
for comments. The Senator from Vermont has the floor.
Mr. LEAHY. Mr. President, the distinguished Senator from Pennsylvania
has asked if I will yield for a question. I will yield without losing
my right to

[[Page S10225]]

the floor or my right to reclaim the floor within 1 minute.
Mr. SANTORUM. Mr. President, I ask if the Senator from North Dakota
and the Senator from Vermont will agree to a unanimous consent request
that we have a final vote on the Energy bill by noon on Friday and in
exchange for that, we will vitiate the cloture votes on the two judges
that are in the queue right now. I think we can probably get unanimous
consent on that on our side fairly quickly.
If the Senator from North Dakota agrees with that, we will be happy
to move forward.
Mr. LEAHY. Mr. President, I have the floor. I am not on the Energy
Committee.
Mr. SANTORUM. I think that is what the Senator from North Dakota
suggested.
Mr. DORGAN. Mr. President, if the----
The PRESIDING OFFICER. The Senator from Vermont has the floor.
Mr. LEAHY. Mr. President, let me respond this way. I have been in the
Senate for 29 years. I love the Senate. I love following our normal
course of doing business. The Senator from Pennsylvania has raised an
appropriate question. I suggest that is a question that should be
directed to the Republican leader and the Democratic leader and the
chairman and the ranking member of the committee, which is the normal
course of doing business, the way we have always done it. Naturally, I
would be guided by the direction of the Republican and Democratic
leaders, not only in the Senate but in the committee.
Obviously, I am not in a position to speak for the Republican or
Democratic leaders or the Republican chairman or Democratic ranking
member on this issue. The Senator from Pennsylvania is perfectly within
his rights in raising the issue, and I hope that might prompt a
discussion with them.
Mr. DORGAN. Mr. President, I ask the Senator to yield for one more
question.
Mr. LEAHY. I yield.
Mr. DORGAN. Mr. President, I ask the Senator, would it make the most
sense to have a final vote on the Energy bill when we have finished our
work on the Energy bill? And wouldn't that best be accommodated by not
going off and on to come up with judgeships and trade agreements?
Wouldn't the best approach to reaching a final vote on the Energy bill
be to stop bringing to the floor of the Senate other business, business
that need not be done now?

Mr. LEAHY. Mr. President, I will answer this way: We have diverted
some 6 to 10 hours off the Energy bill now. I see my friend, the senior
Senator from Nevada. I know over the years he has worked very closely
with his counterpart on the Republican side and usually tried to work
out a finite list of amendments to the Energy bill. Again, based on my
experience, my years in the Senate--almost three decades--I find
usually if we stay on a bill that is your important bill, if you do not
keep going off it for the trade agreements about which the Senator from
North Dakota spoke, or these various cloture motions, if we keep going
off these bills, then nobody feels the pressure to work things out.
On the other hand, if we just stay on the bill and people bring up
amendments, we will find which ones are close amendments and actually
have a chance of being adopted and which ones are not going to be
adopted. Usually the Republican and Democratic leadership get together
and whittle down the finite number. Then, as the Senator from
Pennsylvania suggested, we are usually in the position to find a time
for a final vote.
My suggestion is that we use what he has suggested but stay on the
Energy bill, work toward a finite list of amendments. We will then know
when they are going to take place and how much time they are going to
take. And then we will know when we are going to have final passage. We
can do that and then go back to anything else they want.
If we are going to keep going back to these judges--as I said, we so
far stopped two of President Bush's judges and confirmed 140, unlike
the 60 of President Clinton's judges who were stopped by the
Republicans, usually because someone objected anonymously. We have done
it out here on the floor where we stood up on the nomination.
I am one Senator who actually takes seriously the role of the Senate.
There are only 100 of us, and we are given the privilege to represent
270 million Americans. But we also have a very unique place. There is
no other parliamentary body in the world quite like the Senate. We have
this unique spot where we have checks and balances, especially on
confirmations. The Constitution does not say advise and rubberstamp; it
says advise and consent.
Nobody should underestimate our commitment to the independence of the
Federal judiciary and to our constitutional duty to advise and consent
on these lifetime appointments. Nobody should underestimate our
commitment to the protection of the rights of all Americans--
Republicans and Democrats, Independents--in every part of this Nation.
The Senate was intended to serve as a check and balance in our unique
system of Government. We fail our oaths of office as Senators if we
allow the Federal judiciary to be politicized, if we cast votes that
would remove their independence.
Mr. President, I ask unanimous consent that it be in order to yield
to the distinguished senior Senator from California.
The PRESIDING OFFICER. Is there objection?
Mr. SANTORUM. Mr. President, I object.
The PRESIDING OFFICER. The objection is heard.
Mr. LEAHY. Mr. President, then I will continue my speech.
Mr. HATCH. Mr. President, reserving the right to object.
The PRESIDING OFFICER. Objection has been heard.
Does the Senator from Pennsylvania withdraw his objection?
Mr. SANTORUM. No, I do not.
Mr. LEAHY. Mr. President, then I would----
Mr. HATCH. Parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state his parliamentary
inquiry.
Mr. HATCH. Could I ask how much time the distinguished Senator from
California desires?
Mrs. FEINSTEIN. I do not think more than 10 or 12 minutes.
Mr. HATCH. My personal belief is we ought to let her go ahead, and I
would encourage my colleague to do that.
Mr. LEAHY. Mr. President, I would renew my----
Mr. HATCH. I ask unanimous consent that we----
Mr. LEAHY. I have the floor. I would renew my request.
Mr. HATCH. Would the Senator add that I be given time?
Mr. LEAHY. Along with the distinguished senior Senator from Utah, I
renew my request that I be allowed to yield now to the distinguished
senior Senator from California.
Mr. HATCH. I add to that, when the distinguished Senator from
California is finished I would be granted the floor for my remarks.
Mr. LEAHY. For how long?
The PRESIDING OFFICER. Is there objection?
Mr. REID. Reserving the right to object.
Mr. HATCH. I have no idea.
The PRESIDING OFFICER. Is there objection?
Mr. DURBIN. I object.
The PRESIDING OFFICER. The Senator from Illinois objects.
Mr. DURBIN. I reserve the right to object, Mr. President. I inquire
of the Senator from Utah how much time he would want to be recognized.
Mr. HATCH. I do not have an exact time, but I would hope not too
long.
Mr. DURBIN. Well, if the Senator from Utah would give me a fair
approximation so I can request to follow him in speaking order, that is
all I am asking for.
Mr. HATCH. I would estimate up to an hour.
Mr. REID. Objection.
The PRESIDING OFFICER. The objection is heard.
Mr. HATCH. Then I will ask for the floor when the distinguished
Senator from Vermont ends his remarks.
The PRESIDING OFFICER. The Senator from Vermont has the floor.
Mr. REID. Will the Senator from Vermont yield for a question?
Mr. LEAHY. I yield to the distinguished senior Senator from Nevada
for a question.

[[Page S10226]]

Mr. REID. I say to the Senator from Vermont, it is my understanding
that the Senator has approximately 15 or 20 minutes on his speech. What
the Senator wanted to do is yield to the Senator from California for 10
or 12 minutes, I think she said. Then it is my understanding that the
request was the Senator from Utah be recognized for up to an hour, and
then following that I would like to modify the request that the Senator
from Illinois be recognized for up to 45 minutes

Mr. SANTORUM. Mr. President, I object.
The PRESIDING OFFICER. The Senator from Nevada cannot propound a
unanimous consent request. He does not have the floor. The Senator from
Vermont does.
Mr. LEAHY. Mr. President, on behalf of both myself and the Senator
from Utah, Mr. Hatch, I ask unanimous consent that the distinguished
Senator from California be recognized for no more than 15 minutes; the
distinguished Senator from Utah be recognized for up to an hour; and
then the distinguished senior Senator from Illinois be recognized for
up to 40 minutes.
The PRESIDING OFFICER. Is there objection?
Mr. SANTORUM. I object.
The PRESIDING OFFICER. The objection is heard.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont has the floor.
Mr. LEAHY. Mr. President, I tried to accommodate the Senator from
Utah.
Mr. HATCH. Who is trying to accommodate the Senator from Vermont.
Mr. LEAHY. Who is trying to accommodate the Senator from Vermont. I
will try to do that even though the Senator from Utah wants to speak
longer than I thought. But he is, after all, the chairman of the
committee. I was willing to stop my speech at this point to accommodate
him. We have probably taken longer in making these unanimous consent
requests.
Mr. HATCH. I have a suggestion. Why does not the distinguished
Senator end his speech and we will go to the distinguished Senator from
California before me, and then I will try to be less than an hour?
Mr. LEAHY. Mr. President, I ask that that be the order; that I
complete my speech, yield to the Senator from California, and then the
Senator from Utah be recognized.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. I have spoken to the distinguished junior Senator from
Pennsylvania. He said the reason he objected is because he felt it was
an unequal distribution of time. If that is the case, we want to make
sure there is an equal distribution of time. Through the chair, to the
Senator from Utah, I am wondering who wants to speak after the Senator
from Utah. I am trying to figure out how to balance this out fairly.
We recognize that Senator Kennedy spoke for 20 minutes or so.
Mr. HATCH. He spoke for half an hour.
Mr. LEAHY. Mr. President, I suggest to my colleagues that we do this,
as we have offered before: We allow the Senator from California to
speak, and then the Senator from Utah, and then, as we have done
before, we go back and forth.
Mr. REID. I do not think we should go back and forth. Whoever gets
recognized should speak after the Senator from Utah.
Mr. SANTORUM. That is fine.
Mr. LEAHY. I ask unanimous consent that it be in order to recognize
the Senator from California, and then be in order to recognize the
Senator from Utah, Mr. Hatch.

The PRESIDING OFFICER. Is there objection?
Mr. DORGAN. Reserving the right to object.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, as I understand the unanimous consent
request, we are now moving forward to debate this judgeship so that we
can have a cloture vote in the morning, much to the angst of many who
believe we should be on the electricity title of the Energy bill. So I
ask when is it in order for us to ask unanimous consent to vitiate the
cloture vote in the morning so we might do what every one of us in this
Chamber knows we should be doing, and that is be back on the energy
title to try to finish the Energy bill?
I ask the Presiding Officer when might it be in order for me to seek
unanimous consent to vitiate the cloture vote tomorrow morning so we
can get back to the Energy bill now?
The PRESIDING OFFICER. The Senator can make a unanimous consent at
any time he gains the floor in his own right.
Mr. DORGAN. Would that include the time during a reservation of
another unanimous consent request?
The PRESIDING OFFICER. No, it would not.
The Senator from Vermont.
Mr. LEAHY. Mr. President, I would renew any request.
The PRESIDING OFFICER. Is there objection?
Mr. SANTORUM. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. I say for the purpose of edification of the Senator
from North Dakota, the two leaders have met and talked and our leader
went to the Democratic leader and actually suggested to do just that,
vitiate in exchange for a time certain this week to finish this bill,
which is what I know the Senator from North Dakota was looking to do.
Mr. DORGAN. No, that is not the case.
Mr. SANTORUM. As a result, that was not accomplished. The Senator
from South Dakota said that was not acceptable, so as a result we are
now stuck on what seemingly some Members of this Chamber would like to
talk about.
Mr. DORGAN. Mr. President, continuing to reserve the right to object.
The PRESIDING OFFICER. The Senator from Vermont has the floor.
Mr. LEAHY. I renew my request.
The PRESIDING OFFICER. Is there objection?
Mr. DORGAN. I continue my reservation to object. Let me just say that
I speak fairly well for myself on this floor, and I have never
suggested that in exchange for anything we have a time certain. What I
suggested is that if we want to finish this Energy bill, we be able to
offer the amendments on the title and debate the amendments. We are not
going to get to that point if we keep interrupting the Energy bill with
judges and trade agreements.
If we believe this is urgent--and the President says it is, I believe
it is, others believe it is--let's get back to it this moment. Let's
vitiate the cloture vote tomorrow on the judgeship. Let's hold over the
free-trade agreements until September and decide this is important, as
we have always said it was, and move to finish this Energy bill. I am
not talking about a time certain. The time for finishing it is when we
finish the amendments, have debate on the amendments, and have votes on
the amendments.
We can do that if I ask unanimous consent to vitiate the cloture vote
tomorrow, but I guess I cannot do that under a reservation of
objection.

The PRESIDING OFFICER. Is there objection to the unanimous consent
request of the Senator from Vermont?
Mr. LEAHY. Mr. President, I will withhold my request for the moment
without losing my right to the floor so that the Senator from Utah
might make a point.
The PRESIDING OFFICER. Without objection.
Mr. HATCH. Reserving my right to object, Mr. President, it is not
unusual to have multiple matters heard by the Senate. It is certainly
not unusual to have cloture votes on judges, especially under the
current situation. I would be happy to quit debating General Pryor
tonight, even though there has been probably close to an hour of the
Senate's time utilized on this debate, and just go to the cloture vote
tomorrow, quit playing around with the Energy bill that we know is
being slow-walked, and try to finish the Energy bill before the end of
this week.
There is no excuse for not having a cloture vote on Judge Pryor or
Judge Kuhl on Friday.
Mr. LEAHY. Mr. President, regaining my right to the floor, I probably
could have completed my speech during this

[[Page S10227]]

time, but I was trying to save everybody some time. I was trying to
accommodate the distinguished senior Senator from Utah, who is the
chairman. I think everybody has agreed now to the request I have made.
I would renew my request that the distinguished Senator from
California be recognized, the ball then goes back to the distinguished
Senator from Utah.
The PRESIDING OFFICER. Is there objection?
Mr. SARBANES. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. SARBANES. I am prompted to do this by the statement of the
chairman of the Judiciary Committee.
It is outrageous you should suggest you would schedule the judge for
tomorrow on a cloture vote and not provide time for debate, which is
the issue that is at stake here. We need the debate on the judge, and
then you say, well, you are interfering with the progress of the Energy
bill.
Who was it who scheduled the judge for tomorrow? That is where the
intrusion came in terms of the process of dealing with the Energy bill.
Mr. HATCH. People have a right to schedule the judge.
Mr. SARBANES. And at the same time assert that you have to pass the
Energy bill.
Mr. HATCH. This is the first time we have ever----
The PRESIDING OFFICER. The Senator from Vermont has the floor. Is
there an objection to the unanimous consent?
Mr. DORGAN. I object.
The PRESIDING OFFICER (Mr. Coleman). The objection is heard.
Mr. LEAHY. Well, Mr. President, I know everyone stands riveted to
hear the rest of my speech. I was trying to complete the speech so the
Senator from California could be recognized.
Mr. President, sometimes after all this work, the Senate actually
does work. Those who are watching someday will explain what exactly has
happened.
To continue, the Senate has already confirmed 140 of this President's
judicial nominees, including 27 circuit court nominees. We could have
confirmed at least five more this week if the Republican leadership
would have worked with us to schedule votes on them. That stands in
sharp contrast to the treatment of President Clinton's nominees by a
Republican-controlled Senate from 1995 through 2001, when judicial
vacancies on the Federal courts were more than doubling from 16 to 33.
Opposition to Mr. Pryor's nomination is shared by a wide spectrum of
objective observers. Mr. Pryor's record is so out of the mainstream
that, even before last month's hearing, a number of editorial boards
and others weighed in with significant opposition.
Last April, even the Washington Post, which has been exceedingly
generous to the Administration's efforts to pack the courts, termed Mr.
Pryor ``unfit''. Both the Tuscaloosa News and the Hunstville Times
wrote in early May against the nomination. Other editorial boards
across the country spoke out, including the San Jose Mercury News and
the Pittsburgh Post-Gazette. Since the hearing, that chorus of
opposition has only grown and now includes the New York Times, the
Charleston Gazette, the Arizona Daily Star and the Los Angeles Times. I
ask unanimous consent to print the full package of these editorials and
op-eds in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Washington Post, April 11, 2003]

Unfit To Judge

President Bush must have worked hard to dream up an
escalation of the judicial nomination wars as dramatic as his
decision this week to nominate Alabama Attorney General Bill
Pryor to the U.S. Court of Appeals for the 11th Circuit. A
protege of Alabama Republican Sen. Jeff Sessions, Mr. Pryor
is a parody of what Democrats imagine Mr. Bush to be plotting
for the federal courts. We have argued strongly in favor of
several Mr. Bush's nominees--and urged fair and swift
consideration of all. And we have criticized Democratic
attacks on nominees of substance and quality. But we have
also urged Mr. Bush to look for common ground on judicial
nominations, to address legitimate Democratic grievances and
to seek nominees of such stature as defies political
objection. The Pryor nomination shows that Mr. Bush has other
ideas.
Mr. Pryor is probably best known as a zealous advocate of
relaxing the wall between church and state. He teamed up with
one of Pat Robertson's organizations in a court effort to
defend student-led prayer in public schools, and he has
vocally defended Alabama's chief justice, who has insisted on
displaying the Ten Commandments in state court facilities.
But his career is broader. He has urged the repeal of a key
section of the Voting Rights Act, which he regards as ``an
affront to federalism and an expensive burden.'' He has also
called Roe v. Wade ``the worst abomination of constitutional
law in our history.'' Whatever one thinks of Roe, it is
offensive to rank it among the court's most notorious cases,
which include Dred Scott and Plessy v. Ferguson, after all.
Mr. Pryor's speeches display a disturbingly politicized
view of the role of courts. He has suggested that impeachment
is an appropriate remedy for judges who ``repeatedly and
recklessly . . . overturn popular will and . . . rewrite
constitutional law.'' And he talks publicly about judging in
the vulgarly political terms of the current judicial culture
war. He concluded one speech, for example, with the following
prayer: ``Please, God, no more Souters''--a reference to the
betrayal many conservatives feel at the honorable career of
Supreme Court Justice David H. Souter.
Mr. Pryor has bipartisan support in Alabama, and he worked
to repeal the provisions in that state's constitution that
forbade interracial marriage. Bush this is not a nomination
the White House can sell as above politics. Mr. Bush cannot
at once ask for apolitical consideration of his nominees and
put forth nominees who, in word and deed, turn federal courts
into political battlegrounds. If he sends the Senate nominees
such as Mr. Pryor, he cannot complain too loudly when his
nominees receive the most researching scrutiny.
____

[From the Tuscaloosanews.com, May 4, 2003]

Pryor's Opinion Goes Beyond Mainstream

Attorney General Bill Pryor's opinion that lumps
homosexuality in with abusive crimes such as child
pornography, bestiality, incest and pedophilia puts him well
within the camp of recent nominees to the federal bench but
well outside the mainstream of American life.
Pryor was nominated by President Bush to a seat on the U.S.
Court of Appeals for the 11th Circuit, which has jurisdiction
over Alabama, Georgia and Florida. A legal argument Pryor
wrote earlier this year, which just came to light last week,
parallels comments by Sen. Rick Santorum, that landed the
Pennsylvania Republican in hot water recently.
The amicus brief, penned by Pryor and signed by attorneys
for South Carolina and Utah, declared that states' support
for the Texas sodomy law in the Supreme Court case of
Lawrence vs. Texas, which the court is expected to decide in
June or July. Pryor argues the Texas law should be upheld,
otherwise constitutional protections ``must logically extend
to activities like prostitution, adultery, necrophilia,
bestiality, possession of child pornography, and even incest
and pedophilia (if the child should credibly claim to be
`willing').''
Hardly so.
It is a long step from sanctioning, or even tolerating,
consensual private activity between two adults to permitting
abusive crimes such as pedophilia. The law is perfectly
capable of drawing such distinctions in theory and in
practice.
We have cautiously supported Pryor's nomination, while
taking issue with a number of his controversial positions.
These include his defense of state Supreme Court Chief
Justice Roy Moore's decision to display the Ten Commandments
in the state Judicial Building, his opposition to multi-state
lawsuits against tobacco companies and his defense of utility
companies in upgrading their coal-fired power plants without
adding new pollution control devices.
Several of Bush's nominees for federal bench hold extreme
anti-gay views. Timony Tymkovich, confirmed to an appeals
court last month, has compared homosexuality to cockfighting,
bestiality, prostitution and suicide.
Pryor's confirmation hearings have not yet been set. The
Judicial Committee will certainly want an explanation of his
incendiary comments, which unfortunately are typical of the
nominees they will be asked to consider.
____

[From the Huntsville Times, May 4, 2003]

Pryor's Preaching

Churches promote faith; courtrooms promote justice.
Attorney General Bill Pryor usually has been what few
Alabama politicians seem to know how to be: principled.
Though unabashedly a conservative Republican, Pryor has
usually been more nonpartisan than partisan.
More than once, he has ignored the prevailing political
winds to do what he thought was right. Trying to reform the
state's sentencing system is a prime example. One that he
thought was right again. But this time Pryor has gotten it
wrong.
In a ``friend of the court'' brief filed almost three
months ago regarding the Texas sodomy case before the U.S.
Supreme Court, Pryor compared homosexual acts to
``prostitution, adultery, necrophilia, bestiality, possession
of child pornography, and even incest and pedophilia.''
This is the same case, of course, the Pennsylvania Sen.
Rick Santorum, another conservative Republican, made
similarly troubling remarks about.

[[Page S10228]]

The problem here is neither that Pryor has a certain point
of view that others may not share, nor that he expressed it.
In the United States, we all have a right to think and speak
freely.
The problem is that as the attorney general of Alabama--and
President Bush's nominee to the 11th Circuit Court of
Appeals--Pryor did not separate his personal moral views from
his public role as a promoter of justice.
Bill Pryor has championed causes that many Republicans and
not a few Democrats would probably have walked away from:
such as the removal of the interracial marriage ban from the
state constitution and the recruitment of mentors for
underprivileged children, to mention a few.
Alabama has benefited from having him as attorney general,
and would probably benefit if he decided to seek an even
higher elected office one day.
Perhaps the nation would too, but not if Pryor plans to use
a judicial appointment as an opportunity to give his moral
points of view the heft of the law's brief seems to be a part
of a trend to infuse public policy and the law with morality
of an abashedly religious strain.
Until God--or whoever or whatever it is you do or do not
worship--decides to clarify the myriad matters of faith that
have caused us to separate into different churches, temples,
mosques, sects, and beliefs, it would be best for those who
believe to enjoy their beliefs in a way that allows others to
enjoy theirs--or to enjoy not having any beliefs at all.
Churches are supposed to promote faith, and courtrooms,
justice. If Pryor is confirmed to the 11th Circuit, he would
do well to honor this distinction.
____

[From the San Jose Mercury News, May 21, 2003]

Coup in the Courts

President Bush has treated judicial nominations like tax
cuts: Declare, with a straight face, that the extreme is
reasonable and that any opponent is obstructionist.
In the case of judgeships, that means nominating one
conservative ideologue after another, knowing that Democrats
in a Republican Senate have neither the will nor a way to
challenge and defeat most of them.
Instead, the Democrats have picked their shots--and they
should continue to do that.
Contrary to his protestations, Bush has had tremendous
success. In his first 28 months of office, the Senate has
approved 121 of his nominations--better than President
Clinton averaged over his administration. Bush has named one
out of seven active federal judgeships.
What's at stake is whether Bush will be able to stuff the
federal courts with judges narrow in their view of minority
and women's rights, staunch in opposition to abortion, and
intent on overturning decisions that have been long accepted
by the courts and the public.
Individuals like James Leon Holmes, nominated to a federal
court in Arkansas, who has written that the role of a woman
``is to place herself under the authority of the man.'' And
Alabama Attorney General Bill Pryor, who characterized Roe v.
Wade, the decision establishing a right to an abortion, as
``the worst abomination of constitutional law in our
history.''
The latest troubling nomination is that of Los Angeles
Superior Court Judge Carolyn Kuhl to the 9th Circuit Court of
Appeals. That court is the ultimate authority, save for the
U.S. Supreme Court, for a huge swath of the West, including
California.
As an eager young lawyer in the Reagan administration, Kuhl
fought the IRS to retain a tax-exempt status for Bob Jones
University despite its record of religious and racial
discrimination. The Supreme Court later overturned that
decision 8-1. As a deputy attorney general, she co-wrote a
brief calling on the Supreme Court to overturn Roe. v. Wade.
Three years ago, she dismissed the suit of a breast-cancer
patient who claimed a violation of privacy after a drug-
company salesman watched her examination without her
permission. That appallingly insensitive ruling was also
overturned.
Kuhl has plenty of supporters among lawyers, including
Democrats, who say she's a good trial judge. If so, that's
where she should stay--not placed on an appeals court where
decisions are binding an all lower courts.
Both home state senators, Barbara Boxer and Dianne
Feinstein, oppose Kuhl's appointment; traditionally, that's
been enough to sink a nomination. But Senate Republicans are
pushing ahead, after slipping by the Judiciary Committee on a
party-line vote.
Democrats have used the filibuster to delay two nominations
to federal appeals courts, that of Washington attorney Miguel
Estrada and Texas Supreme Court Justice Priscilla Owen.
Bush deserves the right to appoint capable, smart,
conservative judges. But senators must exercise their
constitutional veto over nominees whose values and judicial
philosophy are way out of the mainstream.
____

[From the Pittsburgh Post-Gazette, July 20, 2003]

Not Fit for the Bench

alabama's pryor is a walking stereotype

The problem with Senate Republicans during the Clinton
administration was that they too often assumed the
president's nominations to the federal bench were wild-eyed
liberals. Now that a Republican president is in the White
House, the Democrats and their friends are playing tit-for-
tat by viewing Mr. Bush's nominations as reactionary by
definition.
The Post-Gazette has deplored these tendencies, which have
made it difficult to sort out the slanderous caricatures from
the solid characters. It is why we rose strongly to the
defense last year of Western Pennsylvania's D. Brooks Smith,
a Republican nominee who was eventually confirmed for an
appeals court seat after seeing his record distorted by
liberal special-interest groups.
One trouble with crying wolf is that, just as in the old
story, sometimes a real wolf turns up. Such a one is Alabama
Attorney General Bill Pryor, whom The Washington Post
observed in an editorial ``is a parody of what Democrats
imagine Bush to be plotting for the federal courts.''
If Mr. Pryor is confirmed for a seat on the 11th U.S.
Circuit Court of Appeals, he will be well placed to begin
preying on a number of settled legal precedents and
doctrines. Roe v. Wade? ``The worst abomination in the
history of constitutional law'' in the United States, he
said. Separation of church and state? He's cozy with the
religious right, so he looks favorably on such things as the
display of the Ten Commandments on public property. Protect
the environment? Mr. Pryor thinks the feds should get out of
that business and leave it to the states.
And so it goes with this reactionary's reactionary, who
would be in the mainstream only if it were far to the right.
On Thursday, the Senate Judiciary Committee put off voting
on Mr. Pryor's nomination amid concerns raised about his
fund-raising activities for the Republican Attorneys General
Association, specifically focusing on how accurately he
answered the committee's questions.
This is no small matter, but it was dismissed as ``pure
politics, pure and simple'' by Committee Chairman Sen. Orrin
Hatch, R-Utah. In a sense, he was right, except that the
process began in the White House. This nomination is entirely
political, meant to curry favor with President Bush's right-
wing constituency.
The delay represents an opportunity for Pennsylvania's Sen.
Arlen Specter, who has a reputation for reason and moderation
but has been fretting for days about exposing his flank to a
right-wing challenger in the primary. Whatever happens with
the fund-raising questions. Sen. Specter and the others have
before them a self-confirming stereotype who should be
opposed.
____

[From the New York Times, July 23, 2003]

An Extremist Judicial Nominee

The Senate Judiciary Committee could vote as early as today
on the nomination of the Alabama attorney general, William
Pryor, to a federal appeals court judgeship. Mr. Pryor is
among the most extreme of the Bush administration's far-right
judicial nominees. If he is confirmed, his rulings on civil
rights, abortion, gay rights and the separation of church and
state would probably do substantial harm to rights of all
Americans. Senators from both parties should oppose his
confirmation.
Mr. Pryor, who has been nominated for a seat on the Federal
Court of Appeals for the 11th Circuit, based in Atlanta, has
views that fall far outside the political and legal
mainstream. He has called Roe v. Wade, the landmark abortion-
rights ruling, ``the worst abomination'' of constitutional
law in our history. He recently urged the Supreme Court to
uphold laws criminalizing gay sex, a position the court
soundly rejected last month. He has defended the installation
of a massive Ten Commandments monument in Alabama's main
judicial building, which a federal appeals court recently
held violated the First Amendment. And he has urged Congress
to repeal an important part of the Voting Rights Act.
Moderates in the Senate and in the legal community have
repeatedly called on the Bush administration to stop trying
to stack the federal judiciary with far-right partisans like
Mr. Pryor. But the White House and its supporters have chosen
instead to lash out at these reasonable critics. In a
shameful bit of demagoguery, a group founded by Boyden Gray,
a White House counsel under the first President George Bush,
has run newspaper ads accusing Mr. Pryor's critics in the
Senate of opposing him because he is Catholic.
At today's committee meeting, much of the attention will be
on Arlen Spector, the Pennsylvania Republican who could cast
the deciding vote. Mr. Specter owes it to his constituents to
break with the White House and vote against Mr. Pryor, whose
extremist views are out of step with most Pennsylvanians'.
Standing up for an independent, nonideological judiciary is
an urgent cause, and one that should find support on both
sides of the aisle.
____

[From the Charleston Gazette, June 30, 2003]

Extremist Far-Right Nominee

President Bush hopes to pack the federal judiciary with
numerous ultraconservative appointees who eventually will
revoke women's right to choose abortion--a goal of the
Republican national platform--and make other legal changes
desired by the party's ``religious right'' wing.
Many of the White House appointees are evasive about their
personal views when questioned at Senate confirmation
hearings. But one of them, Alabaman William Pryor, nominated
to the Atlanta circuit court, has

[[Page S10229]]

such an inflammatory record that he can't hide his extreme
beliefs.
He told the senators that allowing women to choose abortion
is ``morally wrong'' and this freedom has caused ``the
slaughter of millions of unborn children.'' He said he once
refused to take his family to Disney World on a day that gays
attended, because his personal ``value judgment'' dictated
it.
In the past, he has sneered at the U.S. Supreme Court as
``nine octogenarian lawyers'' because the justices delayed an
execution that Pryor desired.
The New York Times commented:
``As Alabama attorney general, Mr. Pryor has turned his
office into a taxpayer-financed right-wing law firm. He has
testified to Congress in favor of dropping a key part of the
Voting Rights Act. In a Supreme Court case challenging the
Violence Against Women Act, 36 state attorneys general urged
the court to uphold the law. Mr. Pryor was the only one to
argue that the law was unconstitutional. This term, he
submitted a brief in favor of a Texas law that makes gay sex
illegal, comparing it to necrophilia, bestiality, incest and
pedophilia. . . .
``If a far-right legal group needs a lawyer to argue
extreme positions against abortion, women's rights, gay
rights and civil rights, Mr. Pryor may be a suitable
candidate. But he does not belong on the federal bench.''
Where on Earth does Bush find such narrow-minded nominees--
from TV evangelist shows? It will be tragic if America's
federal courts become dominated by one-sided, puritanical
judges far out of step with the majority of people.
Senate Democrats are threatening filibusters to block the
worst of Bush's judicial appointees. Republicans want to
change Senate rules, banning filibusters when judges are up
for confirmation. We hope that West Virginia's senators,
Robert C. Byrd and Jay Rockefeller, do their utmost to hold
the line against extremist judges.
____

[From the Arizona Daily Star, June 14, 2003]

Deny the Ideologue

President Bush continues his quest to pack the American
judicial system with ideologically driven, conservative
activists who simply are unfit to take a seat on the nation's
appellate courts. The latest is William H. Pryor, the Alabama
Attorney General.
Pryor's nomination to the 11th Circuit Court of Appeals is
outrageous. It is designed, as are the president's other
ideological nominations, to appeal to the base instincts of
the right-wing, conservative Christian element of the
Republican Party.
Pryor makes no attempt to distance himself from his
outlandish comments. He has said that if a Texas law
outlawing homosexual sex were overturned, it would open the
door to legalized ``prostitution, adultery, necrophilia,
bestiality, possession of child pornography and even invest
and pedophilia.''
That statement is breathtakingly bigoted.
But Pryor is a multi-dimensional ideologue. Here's his
stance on Roe v. Wade, the Supreme Court decision allowing
abortion: The law is ``an abominable decision'' and ``the
worse abomination in the history of constitutional law.'' He
opposes abortion even in the case of rape.
Though these are his personal opinions about legal
decisions, he says, he would uphold the law as an appellate
court judge. That is disingenuous, at best. He admitted
during a Senate hearing that in a meeting with a conservative
group, he ended by saying a ``prayer for the next
administration: Please, God, no more Souters.''
David Souter, a Supreme Court justice appointed by the
first President Bush, is widely scourned by conservatives
because he is a moderate rather than a conservative Supreme
Court justice.
Only once during questioning before the Senate Judiciary
hearing on his nomination did Pryor backtrack on previous
remarks. He admitted he made an inappropriate remark when he
referred to the Supreme Court as ``nine octogenarian lawyers
who happen to sit on the Supreme Court.'' He made the comment
after the Court issued a stay of execution in his state. They
stay was issued in order to determine whether the use of the
electric chair was unconstitutional.
His background also includes efforts to allow students-led
prayers in schools; defense of an Alabama judge who displays
the 10 Commandments in his courtroom; and support of Alabama
prison guards who handcuff prisoners to hitching posts during
the summer.
Civil rights activists signed a letter arguing against
Pryor's confirmation. The letter said the group was alarmed
that Pryor ``. . . is not only an avowed proponent of the
modern states rights movement, now called federalism, but he
has also asked Congress to `repeal or amend' Section 5 of the
Voting Rights Act, which he said is an `affront to
federalism.' '' The section requires Justice Department
approval to changes in voting procedures made by states.
This ideologue is also delusional. Pryor believes that only
guilty people are executed in this country. The judicial
system, he said, has ``extraordinary safeguards, many
safeguards.'' Further, he said, ``the system catches
errors.''
One of the benefits of nominating a right-winger like Pryor
is that the president gets valuable political points for it.
Even if Pryor is not confirmed by the Senate, and he should
not be, the president still wins. In this age of cynical
politics, Bush will get credit among the most distasteful
elements of his party for nominating one of their own for a
seat on the bench. It will serve him well when he runs for
re-election.
____

[From the Los Angeles Times, June 30, 2003]

Skewed Picture of America

By nominating William H. Pryor Jr. to the federal appeals
court, George Bush has declared that the Alabama attorney
general is not only qualified to sit on the nation's second-
highest court but is the kind of judge most Americans want.
Senators should reject this implausible assessment.
Even though the Senate has already confirmed 132 judges,
pushing court vacancies to a 13-year low, the White House
still complains about delays. Go-along-to-get-along
Republicans may want to approve Pryor rather than buck their
president.
But the appointment of Pryor, 41, to a lifetime seat on the
U.S. Court of Appeals would be an endorsement of an ominous
view of American law. At this month's Senate Judiciary
Committee hearing, he defended--even amplified on--his
disturbing views. His candor is refreshing but it leaves
squirming senators no cover.
``Congress . . . should not be in the business of public
education nor the control of street crime,'' he has argued, a
position at odds with Bush's education initiative and support
for beefed-up law enforcement and tougher criminal penalties.
Pryor contends that the Constitution does not grant the
federal government power to protect the environment. He
regards Roe vs. Wade, the 1973 Supreme Court decision
upholding the legal right to an abortion, as ``the worst
abomination of constitutional law in our history'' and hopes
that the landmark ruling will be overturned.
He would urge repeal of the 1965 Voting Rights Act
requirement that the federal government review state and
local changes to voting procedures that may affect
minorities. It's ``an affront to federalism and an expensive
burden,'' Pryor believes.
Before the Supreme Court last week struck down Texas' anti-
sodomy statute, he argued for upholding that law and another
like it in Alabama. If the Constitution protects the choice
of a sexual partner, he contends, it also permits
``prostitution, adultery, necrophilia, bestiality . . . and
even incest and pedophilia.'' He also believes that the 1st
Amendment's establishment clause should permit a two-ton
granite representation of the Ten Commandments to sit in an
Alabama courthouse.
These views and Pryor's lack of judicial experience caused
the American Bar Assn. to splinter over his fitness for the
appeals seat.
With the Senate already having confirmed so many of Bush's
picks for the federal bench, there's no argument for this
unqualified nominee.
Mr. LEAHY. We have also heard from a number of organizations and
individuals concerned about justice before the Federal courts. The Log
Cabin Republicans, the Leadership Conference on Civil Rights, the
Alliance for Justice, NARAL and many others have provided the committee
with their concerns and the basis for their opposition. We have
received letters of opposition from organizations that rarely take
positions on nominations but feel so strongly about this one that they
are compelled to write, including the National Senior Citizens' Law
Center, the Anti-Defamation League and the Sierra Club. I ask unanimous
consent to print a list of the letters of opposition we have received
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Letters of Opposition to the Nomination of Bill Pryor, to the 11th
Circuit Courts of Appeal

elected officials

Congressional Black Caucus.

PUBLIC INTEREST ORGANIZATIONS

Ability Center of Greater Toledo, Access Now, Inc., ADA
Watch, AFL-CIO, AFSCME, Alliance for Justice, Americans for
Democratic Action, American Association of University Women,
Americans United for Separation of Church and State, Anti-
Defamation League, B'nai B'rith International, California
Council of the Blind, California Foundation for Independent
Living Centers.
Citizens for Consumer Justice of Pennsylvania letter also
signed by: PennFuture, Sierra Club, NARAL-Pennsylvania,
National Women's Political Caucus, PA, United Pennsylvanians.
Coalition For Independent Living Options, Inc., Coalition
To Stop Gun Violence, Disabled Action Committee, Disability
Resource Agency for Independent Living, Stockton, CA,
Disability Resource Center, North Charleston, SC, Eastern
Paralyzed Veterans Association, Jackson Heights, NY, Eastern
Shore Center for Independent Living, Cambridge, MD.
Environmental Coalition Letter signed by: American Planning
Association, Clean Water Action, Coast Alliance, Community
Rights Counsel, Defenders of Wildlife, EarthJustice,
Endangered Species Coalition, Friends of the Earth, National
Resources Defense Council, The Ocean Conservancy, Oceana,
Physicians for Social Responsibility, Sierra Club, U.S.
Public Interest Research Group, The Wilderness Society,
Alabama Environmental Council, Alliance for Affordable
Energy, Buckeye

[[Page S10230]]

Forest Council, Capitol Area Greens, Citizens Coal
Council, Committee for the Preservation of the Lake Purdy
Area, Dogwood Alliance, Foundation for Global
Sustainability, Friends of Hurricane Creek, Friends of
Rural Alabama, Kentucky Resources Council, Inc., Landwatch
Monterey County, Sand Mountain Concerned Citizens,
Southern Appalachian Biodiversity Project, Tennessee
Environmental Enforcement Fund, Waterkeepers Northern
California, Wisconsin Forest Conservation Task Force.
Feminist Majority, Heightened Independent & Progress,
Houston Area Rehabilitation Association, Human Rights
Campaign, Independent Living Center of Southern California,
Inc., Independent Living Resource Center, Ventura, CA,
Interfaith Alliance.
Justice for All letter signed by the following California
organizations: Southern California Americans for Democratic
Action, California Abortion and Reproductive Rights Action
League, California Women's Law Center, Committee for Judicial
Independence, Democrats.Com of Orange County, San Diego
Democratic Club, National Center for Lesbian Rights, National
Council of Jewish Women/Los Angeles, California National
Organization for Women, Planned Parenthood Los Angeles County
Advocacy Project, Progressive Jewish Alliance, Public
Advocates, Inc., Rock the Vote Educational Fund, Stonewall
Democratic Club, Unitarian Universalist Project Freedom of
Religion, Workmen's Circle/Arbeter Ring, Lake County Center
for Independent Living, IL, Leadership Conference on Civil
Rights, Log Cabin Republicans, MALDEF, NAACP, NARAL Pro-
Choice America, National Abortion Federation, National
Association of Criminal Defense Lawyers, National Council
of Jewish Women, National Council of Jewish Women Chapter
in Florida, Alabama and Georgia, National Disabled
Students Union, National Employment Lawyers Association,
National Family Planning & Reproductive Health
Association, National Partnership for Women & Families,
National Resource Defense Council, National Senior
Citizens Law Center, National Women's Law Center, New
Mexico Center on Law and Poverty, Albuquerque, NM, Options
Center for Independent Living, People for the American
Way, Pennsylvania Council of the Blind, Placer Independent
Resource Services, Planned Parenthood Federation of
America, Protect All Children's Environment, Marion, NC,
Religious Action Center of Reform Judaism, SEIU, Sierra
Club, Society of American Law Teachers, Summit Independent
Living Center, Inc., Missoula, MT, Tennessee Disability
Coalition, Nashville, TN, Vermont Coalition for Disability
Rights.

letters from the 11th circuit

Joseph Lowery, Georgia Coalition for the Peoples' Agenda,
NAACP, Alabama State Conference, Alabama Chapter of the
National Conference of Black Lawyers, Alabama Hispanic
Democratic Caucus, Hispanic Interest Coalition of Alabama,
Latinos Unidos De Alabama, Jefferson County Progressive
Democratic Council, Inc., Morris Dees, Co-Founder and Chief
Trial Counsel, Southern Poverty Law Center, Bryan Fair,
Professor of Constitutional Law at University of Alabama,
Tricia Benefield, Cordova, AL, Judy Collins Cumbee, Lanett,
AL, Michael and Becky Pardoe, Mobile, AL, Harold Sorenson,
Rutledge, AL, Patricia Cleveland, Munford, AL, Larry Darby,
Montgomery, AL, Sisters of Mercy letter signed by Sister
Dominica Hyde, Sister Alice Lovette, Sister Suzanne Gwynn,
Ms. Cecilia Street and Sister Magdala Thompson, Mobile,
AL.

LETTER SUBMITTED BY CIVIL RIGHTS MOVEMENT VETERANS

Rev. Fred Shuttlesworth, Leader, Birmingham Movement; Rev.
C.T. Vivian, Executive Staff for Dr. Martin Luther King, Jr.;
Dr. Bernard LaFayette, Executive Staff for Dr. Martin Luther
King, Jr.; Rev. Kim Lawson, Jr., Advisor to Dr. Martin Luther
King, Jr.; President of Southern Christian Leadership
Conference (Los Angeles); Rev. James Bevel, Executive Staff
or Dr. Martin Luther King, Jr.; Rev. James Orange, Organizer
for National Southern Christian Leadership Conference; Claud
Young, M.D., National Chair, Southern Christian Leadership
Conference; Rev. E. Randel T. Osbourne, Executive Director,
Southern Christian Leadership Foundation.
Rev. Joseph Ellwanger, Alabama Movement Activist and
Organizer; Dorothy Cotton, Executive Staff for Dr. Martin
Luther King, Jr.; Rev. Abraham Woods, Southern Christian
Leadership Conference; Thomas Wrenn, Chair, Civil Rights
Activist Committee, 40th Year Reunion; Sherrill Marcus,
Chair, Student Committee for Human Rights (Birmingham
Movement, 1963); Dick Gregory, Humorist and Civil Rights
Activist; Martin Luther King, III, National President,
Southern Christian Leadership Conference; Mrs. Johnnie Carr,
President, Montgomery Improvement Association (1967-Present)
(Martin Luther King, Jr. was the Association's first
President. The Association was established in December, 1955
in response to Rosa Park's arrest.)

OTHER

H.J. Bobb, Defiance, OH; Davis Budd, Sr, Defiance, OH; Don
Beryl Fago, Evansville, WI; Daily Dupre, Jr., Lafayette, LA;
Greg Jones, Parsons, KS; Catherine Koliha, Boulder, CO;
Ashley Lemmons, Defiance, OH; Rebecca Lindemann, Defiance,
OH; Patricia Murphy, Juneau, AK; Randy Wagoner, location
unknown; Rabbi Zev-Hayyim Feyer, Murrieta, CA.
Mr. LEAHY. The ABA's evaluation also indicates concern about this
nomination. Their Standing Committee on the Federal Judiciary gave Mr.
Pryor a partial rating of ``not qualified'' to sit on the Federal
bench. Of course this is not the first ``not qualified'' rating or
partial ``not qualified'' rating that this administration's judicial
nominees have received. As of today, 20 of President Bush's nominees
have received some form of ``not qualified'' rating. Perhaps that is a
reflection of the ideological basis for so many of these nominations,
and the concern on the part of some on what has been a rather compliant
ABA committee that these nominees cannot be fair to every litigant who
may come before them.
Like Jeff Sutton, Bill Pryor has been a crusader for the federalist
revolution, but Mr. Pryor has taken an even more prominent role. Having
hired Mr. Sutton to argue several key federalism cases in the Supreme
Court, Mr. Pryor is the principal leader of the federalist movement,
promoting state power over the Federal Government.
A leading proponent of what he refers to as the ``federalism
revolution,'' Mr. Pryor seeks to revitalize State power at the expense
of Federal protections, seeking opportunities to attack Federal laws
and programs designed to guarantee civil rights protections. He has
urged that Federal laws on behalf of the disabled, the aged, women,
minorities, and the environment all be limited.
He has argued that the Federal courts should cut back on the
protections of important and well-supported federal laws including the
Age Discrimination in Employment Act, the Americans with Disabilities
Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence
Against Women Act, and the Family and Medical Leave Act. He has
repudiated decades of legal precedents that permitted individuals to
sue States to prevent violations of Federal civil rights regulations.
Mr. Pryor's aggressive involvement in this ``federalist revolution''
shows that he is a goal-oriented, activist conservative who has used
his official position to advance his ``cause.'' Alabama was the only
State to file an amicus brief arguing that Congress lacked authority to
enforce the Clean Water Act. He argued that the Constitution's commerce
clause does not grant the Federal Government authority to prevent
destruction of waters and wetlands that serve as a critical habitat for
migratory birds. While this is a sign to most people of the extremism,
Mr. Pryor trumpets his involvement in these cases and is proud of his
work to limit Congress's authority.
Bill Pryor's passion is not some obscure legal theory but something
in which he has believed deeply since he was a student and something
that guides his actions as a lawyer. Mr. Pryor's speeches and testimony
before Congress demonstrate just how deeply-rooted his views are, how
much he seeks to effect a fundamental change in the country, and how
far outside the mainstream his views are. Mr. Pryor's judicial ideology
is something in which he deeply believes, not just an argument that he
makes as a lawyer.
Mr. Pryor is candid about the fact that his view of federalism is
different from the current operation of the Federal Government--and
that he is on a mission to change the Government to fit his vision. His
goal is to continue to limit Congress's authority to enact laws under
the 14th amendment and the commerce clause--laws that protect women,
ethnic and racial minorities, senior citizens, the disabled, and the
environment--in the name of sovereign immunity. Is there any question
that he would pursue his agenda as a judge on the Eleventh Circuit
Court of Appeals--reversing equal rights progress and affecting the
lives of millions of Americans for decades to come?
His strong views against providing counsel and fair procedures for
death row inmates have led Mr. Pryor to doomsday predictions about the
relatively modest reforms in the Innocence Protection Act to create a
system of competent counsel. When the U.S. Supreme Court questioned the
constitutionality of Alabama's method of execution in 2000, Mr. Pryor
lashed out at the Supreme Court, saying

[[Page S10231]]

``[T]his issue should not be decided by nine octogenarian lawyers who
happen to sit on the U.S. Supreme Court.'' Aside from the obvious
disrespect this comment shows for this Nation's highest Court, it shows
again how results-oriented Mr. Pryor is. Of course an issue about cruel
and unusual punishment ought to be decided by the Supreme Court. It is
addressed in the eighth amendment, and whether or not we agree on the
ruling, it is an elementary principle of constitutional law that it be
decided by the Supreme Court, no matter how old its members.
Mr. Pryor has also vigorously opposed an exemption for persons with
mental retardation from receiving the death penalty, exhibiting more
certainty than compassion. He authored an amicus curiae brief to the
Supreme Court arguing that the Court should not declare that executing
mentally retarded persons violated the eighth amendment. After losing
on that issue, Mr. Pryor made an unsuccessful argument to the eleventh
circuit that an Alabama death-row defendant is not mentally retarded.
Mr. Pryor has spoken harshly about the moratorium imposed by former
Illinois Governor George Ryan, calling it a ``spectacle,'' and saying
that it will ``cost innocent lives.'' How can someone so sure of his
position be relied upon to hear these cases fairly? Over the last few
years, many prominent Americans have begun raising concerns about the
death penalty, including current and former supporters of capital
punishment. For example, Justice O'Connor recently said there were
``serious questions'' about whether the death penalty is fairly
administered in the United States, and added: ``[T]he system may well
be allowing some innocent defendants to be executed.'' In response to
this uncertainty, Mr. Pryor offers us nothing but his steadfast belief
that there is no problem with the application of the death penalty.
This is a position that cannot possibly offer a fair hearing to a
defendant on death row.
Mr. Pryor's troubling views on the criminal justice system are not
limited to capital punishment. He has advocated that counsel need not
be provided to indigent defendants charged with an offense that carries
a sentence of imprisonment if the offense is classified as a
misdemeanor. The Supreme Court nonetheless ruled that it was a
violation of the sixth amendment to impose a sentence that included a
possibility of imprisonment if indigent persons were not afforded
counsel.
Like Carolyn Kuhl, Priscilla Owen, and Charles Pickering, Bill Pryor
is hostile to a woman's right to choose. There is every indication from
his record and statements that he is committed to reversing Roe v.
Wade. Mr. Pryor describes the Supreme Court's decision in Roe v. Wade
as the creation ``out of thin air [of] a constitutional right,'' and
opposes abortion even in cases of rape or incest.
Mr. Pryor does not believe Roe is sound law, neither does he give
credence to Planned Parenthood v. Casey. He has said that, ``Roe is not
constitutional law,'' and that in Casey, ``the court preserved the
worst abomination of constitutional law in our history.'' When Mr.
Pryor appeared before the committee, he repeated the mantra of those
who desire confirmation, saying that he would ``follow the law.'' But
his deeply held and intense commitment to overturning established
Supreme Court precedent that protects fundamental privacy rights makes
it impossible to give his promises any credence.
Bill Pryor has expressed his opposition to fair treatment of all
people regardless of their sexual orientation. The positions he took in
a brief he filed in the recent Supreme Court case of Lawrence v. Texas
were entirely repudiated by the Supreme Court majority just a few weeks
ago when it declared that the ``The petitioners are entitled to respect
for their private lives. The State cannot demean their existence or
control their destiny by making their private conduct a crime.'' Mr.
Pryor's belief is the opposite. He would deny certain Americans the
equal protection of the laws, and would subject the most private of
their behaviors to public regulation.
Mr. Pryor's comments have revealed an insensitivity to the barriers
that disadvantaged persons and members of minority groups and women
continue to face in the criminal justice system.
In testimony before Congress, Bill Pryor has urged repeal of Section
5 of the Voting Rights Act the centerpiece of that landmark statute
because, he says, it ``is an affront to federalism and an expensive
burden that has far outlived its usefulness.'' That testimony
demonstrates that Mr. Pryor is more concerned with preventing an
``affront'' to the States' dignity than with guaranteeing all citizens
the right to cast an equal vote. It also reflects a long-discredited
view of the Voting Rights Act. Since the enactment of the statute in
1965, every Supreme Court case to address the question has rejected the
claim that Section 5 is an ``affront'' to our system of federalism.
Whether under Earl Warren, Warren Burger, or William Rehnquist, the
United States Supreme Court has recognized that guaranteeing all
citizens the right to cast an equal vote is essential to our democracy
not a ``burden'' that has ``outlived its usefulness.''
On all of these issues, the environment, voting rights, women's
rights, gay rights, federalism, and more, William Pryor's record of
activism and advocacy is clear. That is his right as an American
citizen, but it does not make him fit to be a judge or likely to be
fair on such issues. I think the length and level of his devotion to
these issues creates a situation in which his impartiality on such
issues would reasonably be questioned by litigants in his court. He
should not be confirmed to the United States Court of Appeals for the
Eleventh Circuit.
Mr. HATCH. I yield to the distinguished Senator from California, and
I intend to take the floor as soon as she is through.
The PRESIDING OFFICER. Is there objection?
Mr. DORGAN. Mr. President, reserving the right to object.
Mr. DOMENICI. Object to what?
Mr. HATCH. You cannot object.
Mr. DORGAN. Does the Senator from Utah, does the chairman of the
committee, have the opportunity to yield the floor to another Member of
the Senate?
The PRESIDING OFFICER. He does not.
Mr. DORGAN. What did the Senator from Utah just try to do?
Mrs. FEINSTEIN. It was a nice thing.
Mr. HATCH. I ask unanimous consent that the distinguished Senator
from California be recognized for 15 minutes.
The PRESIDING OFFICER. Is there objection?
Mr. DORGAN. I object.
Mr. DOMENICI. Reserving the right to object, I want to say to
everyone who is listening, in case you are confused, we are not on the
Energy bill.
The PRESIDING OFFICER. The Senator from Utah has the floor.
Mrs. FEINSTEIN. Mr. President.
The PRESIDING OFFICER. The Senator from Utah has the floor.
Is there an objection to the unanimous consent request of the Senator
from Utah?
Mr. DORGAN. I object.
The PRESIDING OFFICER. There is an objection.
Mr. HATCH. Mr. President, let me take the floor. I am going to yield
the floor in just a second.
I expect the distinguished Senator from California to be recognized
so she can take 15 minutes. Then I am going to warn the Senate, right
now, the minute she is through, I want the floor back, and I have a
right to have it as the leader on the majority side. Am I right,
parliamentarily?
The PRESIDING OFFICER. The Senator from Utah is seeking recognition.
He has priority of recognition as the majority manager.
Mr. DORGAN. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Senator from North Dakota will state his
parliamentary inquiry.
Mr. DORGAN. Mr. President, the Senator from Utah stated that when he
finishes his presentation, he expects the Senator from California to be
recognized, after which he expects to be recognized.
Does the Senator from Utah have a right to yield the floor to the
Senator from California?
Mr. HATCH. I didn't do that.
The PRESIDING OFFICER. He does not have the right to yield the floor,
but he did not propose that as a unanimous consent request.
Mr. DORGAN. Mr. President, the Senator from Utah has priority
recognition as manager of the bill. He

[[Page S10232]]

may seek the floor on that basis following the presentation by the
Senator from California, not by prearrangement, however; is that
correct?
The PRESIDING OFFICER. That is correct.
Mr. DORGAN. Thank you.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, thank you very much. I thank the
chairman of the committee and I thank the ranking member.
I have served on this committee for 10 years. I love this committee.
The Presiding Officer serves on this committee. It is a challenging
committee. It is particularly challenging for me because I am a
nonlawyer. I have had a great opportunity to work across the aisle on
any number of different proposals with the chairman of the committee,
with the Senator from Arizona, Mr. Kyl, with Senator Lindsey Graham,
with others. I have enjoyed it. There has always been a spirit of
collegiality.
However, that spirit of collegiality is at a crossroads. Something
very ugly has been injected. It has to do with this nominee, and it has
to do with circumstances around this nominee. I will spend a few
moments discussing them. This kind of thing that has been going on has
to stop.
Last week, the Democratic members of the committee were accused by
outside groups, and even some of our colleagues on the committee, of
applying an anti-Catholic religious litmus test on the nomination of
William Pryor. These charges are false. They are baseless. They are
offensive. And they are beneath the dignity of a Senate committee
tasked with making very important decisions on the future of the
Federal judiciary.
We have heard a lot about the ad. I never thought I would see an ad
like this. It is a rather insidious ad. I will not show it, but I will
describe it. It is two courtroom doors. Atop it says ``Judicial
Chambers.'' On the doorknob hangs a sign that says ``Catholics Need Not
Apply.'' When I saw this ad, I thought we were going back decades. When
I saw this ad, I thought: Uh-oh, if there is one thing I know--and I
have watched cities polarized, I have seen assassinations result from
the polarization--I know what happens when people seek to divide. One
of the easiest ways to divide is to use race or religion in an adverse
manner. That is what this ad sought to do. It sought to divide.
Then I watched C-SPAN the other night. I saw clergy discussing the
ad. I saw them beginning to believe that religious litmus tests were
being used by the Judiciary Committee. Now, in fact, that has never
been the case.
Senator Schumer pointed out during Mr. Pryor's markup in the
committee that this kind of thing is becoming somewhat of a pattern.
Once it becomes a pattern, no one really knows where it goes.
We have not opposed a lot of nominees. The ranking member has made
that clear: 140 nominations have gone through. Just today we had a
hearing in the morning. I introduced two California judges who were
going through in a 4-month period of time, new judges produced because
the chairman and the ranking member agreed there was a very heavy
caseload in San Diego and there should be a number of new judges. They
were nominated in May. Already these judges have had their hearing. So
good things do happen.
However, each time we have opposed a nominee, there has been bias
used as a rationale for those who do not agree with us, to purport that
bias is part of our rationale. It happened with an anti-Hispanic charge
with Miguel Estrada, an anti-woman charge with Priscilla Owen, an anti-
Baptist charge with Charles Pickering, and now with William Pryor an
anti-Catholic charge.
You have no idea what happens when this begins to circulate
throughout the electorate. People do not know exactly what goes on. It
is a dastardly thing to do. In a sense it is scurrilous, because it
caters to the basic insecurity of all of us who share a religion that
may be different from someone else's. So it has a truly insidious
quality to it.

To call us antiwoman--I don't have to tell you how bizarre it is for
me to be called antiwoman. And to say we have set a religious litmus
test is really equally false.
Many of us have concerns about nominees sent to the Senate who feel
so very strongly, and sometimes stridently, and often intemperately
about certain political beliefs and who make intemperate statements
about those beliefs. So we raise questions about whether those nominees
can be truly impartial, particularly when the law conflicts with those
beliefs.
It is true that abortion rights can often be at the center of these
questions. As a result, accusations have been leveled that any time
reproductive choice becomes an issue, it acts as a litmus test against
those whose religion causes them to be anti-choice. But pro-choice
Democrats on this committee have voted for many nominees who are anti-
choice and who believe that abortion should be illegal, some of whom
may even have been Catholic. I do not know because I have never
inquired.
So this truly is not about religion. This is about confirming judges
who can be impartial and fair in the administration of justice. I think
when a nominee such as William Pryor makes inflammatory statements and
evidences such strongly held beliefs on a whole variety of core issues,
it is hard for many of us to accept that he can set aside those beliefs
and act as an impartial judge--particularly because he is very young,
41; particularly because this is a lifetime appointment; and
particularly because we have seen so many people who have received
lifetime appointments then go on and do just what they want, regardless
of what they said. So it is of some concern to us.
I hope these accusations will stop. I hope we can focus on the merits
of each nominee, not on baseless allegations against Members of the
Senate who are trying to do their constitutional duties.
I am very concerned because, to date, not a single Member on the
other side has said they believe these ads are baseless, have said they
know we do not practice this kind of decisionmaking. No one has
disavowed these ads.
So I call on the committee to disavow these ads. I call on the
administration to disavow these ads. And I call on them to set the
record straight.
There was a time in our history when the phrase ``Catholics need not
apply'' was used to keep countless qualified Americans from pursuing
the American dream. The same can be said for ``no Jews need apply'' and
``no Irish need apply.'' And, much like Justice Sandra Day O'Connor,
when she first looked for her first job and I first looked for my first
job, really ``women need not apply.''
In fact, I lost my first job to a man who was less qualified than I,
but I was a woman and I had a small child and at that time that was not
much coin of the realm to get a job. So I was beaten out many times by
men who were less qualified--had less academic experience, less
graduate experience, et cetera.
These were dark times in American history and many of us in this body
remember those times. But every one of us should be absolutely
committed to preventing those days from ever recurring. What this is a
sign of is that those days are beginning to occur again.

I hope we do not see political cheap-shot artists bringing painful
phrases back for the purposes of intimidating Senators and stacking
Federal courts. We should be above that in this debate. This is the
Senate, as the distinguished Senator from Nevada has said, and our
constitutional duty should not be marred by false allegations or
intimidating political tactics. Our Nation's history in fighting
bigotry of all kinds must continue. I urge my colleagues very sincerely
to condemn these tactics and move on to debating the merits of
controversial nominees.
Now a second event at the Pryor markup also disturbed me greatly and
was especially troubling because we faced a repeated refusal to
acknowledge the clear application of a longstanding committee rule on
ending debate. Without the violation of the rule, Mr. Pryor would still
be before the Judiciary Committee, as I deeply believe he should be.
The Judiciary Committee rules contain a clause known as Rule 4 that
prevents closing off debate on a nominee unless at least one member of
the minority agrees to do so.

[[Page S10233]]

It isn't used a lot but it has been used before when I have been on
the committee.
During debate on the Pryor nomination, the Ranking Member attempted
to invoke this rule because members of the minority did not believe
that an ongoing investigation into Mr. Pryor's nomination had been
given sufficient time.
Serious allegations were made about Mr. Pryor's truthfulness to the
committee during the hearing, and staff had been looking into those
allegations. Put simply, the job has not been completed.
But, as Chairman Hatch did earlier this Congress with regard to the
nomination of Deborah Cook and John Roberts, he chose to ignore this
rule and force through a vote over the objections of every member of
the minority on the committee.
We thought the issue had been resolved during discussions over what
happened last time, but apparently we were wrong.
The rule contains the following language:

The Chairman shall entertain a non-debatable motion to
bring a matter before the Committee to a vote. If there is
objection to bringing the matter to a vote without further
debate, a rollcall vote of the Committee shall be taken, and
debate shall be terminated if the motion to bring the matter
to a vote without further debate passes with ten votes in the
affirmative, one of which must be cast by the Minority.

That is a reading on its face. It stands on its face. It is what it
is.
Over the last few decades, it has clearly meant that unless one
member of the minority agrees to cut off debate and move straight to a
vote, no vote can occur. This is one of the only protections the
minority party has in the Judiciary Committee. Without it, there might
never be debate at all. A chairman could convene a markup, demand a
vote, and the entire process would take 2 minutes. This is not how a
deliberative body should function, and more importantly, it is contrary
to the rules. Either the rules are observed or we have chaos on the
committee. If we do not like the rules, we should change the rules. But
we should follow the rules.
As I understand it, this rule was first instituted in 1979. Senator
Kennedy was chairman of the committee at the time. It has been followed
ever since.
Senator Hatch, our current chairman, has also followed the rule. I
make no bones about the fact that I am very fond of the chairman, but
he has been going through some kind of a change lately, and I don't
quite know what it is.
During the markup of Bill Lann Lee to be the Assistant Attorney
General for the civil rights division, there was some fear that
Republicans, who had the votes to defeat the nomination would move
directly to a vote and prevent any debate on the issue at the
markup. Democrats, on the other hand, wanted the chance to explain
their position, and maybe even try to change some minds on the other
side.

During that markup, then, there was significant discussion about what
rule 4, the rule about cutting off debate, really means. At one point,
it is interesting to note, Chairman Hatch himself commented that:

At the appropriate time, I will move to proceed to a vote
on the Lee nomination. I assume there will be no objection.
It seems to me he deserves a vote. People deserve to know
where we stand on this issue. Then we will, pursuant to Rule
IV, vote on whether to bring the Lee nomination to a vote. In
order to vote on the nomination, we need at least one
Democrat to vote to do so.

That is precisely what we are discussing. The situation then was the
same as the situation regarding Mr. Pryor. In order to vote on the
nomination, we need at least one Democrat to vote to do so. But we
never even had the chance to vote on cutting off debate.
I don't need to lecture this body that we are a nation of laws. We
know that. We expect these laws to be obeyed. This is a Senate of
rules. Our rule book is 1,600 pages long. There is no greater expert on
rules than the senior Senator from the great State of West Virginia.
Rules have always been observed. Some of them are complicated. This
happens to be pretty simple, and we all understand it.
I want to spend a moment on the materials that have been before us
that are being investigated. The materials in question came to the
Judiciary Committee just 2 or 3 weeks ago.
Those materials raise real questions about whether Mr. Pryor misled
the committee about his activities on behalf of the Republican
Attorneys General Association, a fundraising organization that I
believe raises serious concerns about conflicts of interest.
For instance, questions have been raised about whether Mr. Pryor
raised money from tobacco companies, while at the same time arguing
against pursuing those companies through litigation. I don't know
whether this allegation is true or not true. None of us do. I wasn't
really prepared to vote. But we should look into it and we should be
able to match his statements to the committee with the facts.
There are other areas where the documents given to the committee
suggest that Mr. Pryor may not have been completely forthcoming at his
hearing.
We will never get past the partisan bad-feelings that are
increasingly apparent in the Judiciary Committee if we cannot even rely
on having our rules followed to the extent of carrying out an
investigation with materials about which none of us knew existed when
we had the hearing on the nominee.
On the merits, this is a nominee who has been before us for just a
few months.
I mentioned the investigation. I mentioned rule 4. But let me go into
a couple of the merits from our side and from our point of view.
He used his position as Attorney General to limit the scope of
crucial civil rights laws like the Violence Against Women's Act, the
Age Discrimination In Employment Act, the American with Disabilities
Act, the Fair Labor Standards Act, and the Family Medical Leave Act.
He said that he doesn't believe that the Federal Government should be
involved in ``education or street crime.''
Mr. SESSIONS. Will the Senator yield for a question?
Mrs. FEINSTEIN. I beg your pardon?
The PRESIDING OFFICER. The Senator from California has the floor.
Mr. SESSIONS. Will the Senator yield for a question?
Mrs. FEINSTEIN. No. I would rather finish my remarks. If I have time
left, I will yield.
Mr. SESSIONS. I wanted to clear up a misstatement.
The PRESIDING OFFICER. The Senator from California has the floor.
Mrs. FEINSTEIN. Mr. Pryor calls Roe v. Wade ``the worst abomination
of constitutional law in our history.'' He has written that he could
``never forget January 22, 1973, the day seven members of our highest
court ripped out the life of millions of unborn children.'' That is a
quote. It is a very strong statement.
He has lobbied for the repeal of section V of the Voting Rights Act.
After the Bush v. Gore decision, Pryor made the astounding statement,
``I'm probably the only one who wanted [the decision] 5-4 . . . I
wanted Governor Bush to have a full appreciation of the judiciary and
judicial selection so we can have no more appointments like Justice
Souter.''
This is a sitting attorney general taking on a Justice of the U.S.
Supreme Court by name. I have never heard of that before. Of course,
there is always a first time. It was also an attack on a Justice who
was well known as being more moderate than he was expected to be and
who does not simply toe a party line.
So is Mr. Pryor saying he would want only those judges who remain
completely faithful to the ideology of those who choose them? Is he
saying that Justice Souter is simply not conservative enough? I think
he is.
Mr. Pryor has taken positions so extreme that they are at odds with
the rest of the Nation's attorneys general. For example, he was the
only attorney general to argue against a key provision in the Violence
Against Women Act on federalism grounds.
So there is a reason we feel strongly about it.
My experience is that in appointing someone to the trial bench when
that individual has never been a judge is probably a good idea, even if
they are an attorney general. One can make some judgments about people
who hold political office and who are strong advocates as to whether in
fact they can separate themselves from their ideology, whatever that
ideology may be.

[[Page S10234]]

I believe people can do this. I voted for Jeffrey Sutton because I had
that belief. In this case, I am not so sure because the rhetoric is so
strident and so very intemperate.
The Senator from Alabama, who is present on the floor, believes he
can, and there are people who believe he can. But I think the jury is
out because there is a venture into an attack on a sitting U.S. Supreme
Court Justice, there is a characterization of a landmark Supreme Court
case as ``an abomination,'' and other things as well. There is an
attack on many significant--significant to those of us on this side of
the aisle--pieces of Federal legislation.
Truly, this is a nomination that deserves and merits debate--an open
debate. But I would like the debate to take place with the observation
of the rules of the committee and after the investigation that is
ongoing is finished.
I hope the Senator from North Dakota's importuning to leadership is
taken. We don't need to have a cloture vote at this time on this
nominee. That cloture vote can come after the results of the
investigation are finished--certainly after the Energy bill--because I
think if a cloture vote is taken, these arguments I have made on the
merits of the case are really going to be dispositive as far as votes
on our side are concerned.
I thank the Chair. I yield the floor. I thank very much the chairman
of the committee.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I compliment the distinguished Senator from
California as well. I feel very deeply toward her. I think she is a
wonderful person, and I think she is a fine Senator who works very hard
on the Judiciary Committee. And I appreciate her kind remarks about me.
Mr. President, let me make something clear. I keep hearing that we
are going to vote on judges. Well, I certainly wish that were the case.
What we are talking about is a cloture vote tomorrow, and one on
Friday. It is not unusual at all, in fact it is a matter of course, for
the Senate to double track various items in the interests of the body
to keep on top of matters.
The two trade bills are extremely important for this country, with
two of our greatest allies and supporters, Chile and Singapore. It
needs to be done. There is no reason to have hours of debate on it.
There are some hard feelings about it, and so forth, but it can be
done.
We could have debated this in the hour before the cloture vote, which
is what the rule calls for. If we invoke cloture, there will be ample
opportunity to devote time to the total debate on General Pryor.
But now let me just make another point or two. The distinguished
Senator from California is very upset at him because he actually took
up to the Supreme Court an issue on the Violence Against Women Act. She
takes great umbrage at that. Unfortunately, he won. So to indicate that
he may be outside the mainstream or somebody who should not be
supported because he wins in front of the Supreme Court--and almost
everything they criticize, as far as Supreme Court matters are
concerned, he has won on, until this last term when he lost on a couple
of issues. And in every case he followed what he believed the law was
regardless of his own personal beliefs. By the way, I am one of the
coauthors in the Congress of the Violence Against Women Act.
So to criticize him for something that the Supreme Court agrees with
him on gives an indication who is outside the mainstream. It isn't
General Pryor. And there is case after case after case where he wins
that has been criticized by our colleagues over there as though somehow
or other he has been off the charts when it comes to the law. He has
been on the charts. I admit, he has lost some, too. But I don't know of
anybody who has taken multiple cases to the Supreme Court who has won
everything. I know a few who have had pretty good records--and he has
one of the better records as an attorney general in this country.
My Democratic colleagues assert, in laundry list format, that General
Pryor is basically against everything they are for. He is ``out of the
mainstream.'' We hear that over and over again. Pryor is against civil
rights, disability rights, minorities and women themselves, the
environment--the whole thing, presumably, and of course--abortion
rights.
I am paraphrasing just one Democratic Senator's statement during the
markup on July 23, 2003, but it is a fair representation of the types
of assertions against General Pryor that are designed not to debate his
fitness for the Federal bench but, rather, to strangle debate before it
begins. To paint this excellent nominee as so ``extreme'' as to be not
worth discussing.
By the way, we did not bring this debate up tonight. I did not want
to stand here tonight and answer these so-called allegations. My
friends on the other side did. They are the ones who interrupted the
Energy bill, which is being slow-walked. And we all understand that--as
almost everything has been this year.
These are what you call obstructionist tactics. And that is what is
going on here. For them to come out here on the Senate floor and act
like, well, we are interrupting the energy debate--it is almost more
than I can take.

This energy debate is very important. It should be over. And I would
be happy to end it right now, have the cloture vote tomorrow. I will
even give up the hour before cloture, if they want to, to keep working
on the Energy bill. But, no, that is not what they are doing. This is
all a slow-walk to try to make this Congress look as if it isn't a good
one, even though, in spite of these slow-walks, we have done bill after
bill after bill, some of them extremely important pieces of
legislation.
Let me provide you with a succinct but very different, and much more
realistic picture of General Pryor.
General Pryor has been criticized as insensitive to the rights of the
disabled because he argued in the Garrett case that the Americans with
Disabilities Act could not, under section 5 of the 14th amendment,
validly abrogate States' 11th amendment immunity and authorize money
damage suits against States in Federal court.
But the Supreme Court agreed with General Pryor. He is being
criticized by others on the Senate floor for cases that he has won in
the Supreme Court.
He has also been criticized as insensitive to age-based
discrimination because he and a bipartisan group of 23 other State
attorneys general--23 other bipartisan State attorneys general--argued
in the Kimel v. Florida Board of Regents case that the provision of the
Age Discrimination in Employment Act that allowed money damage suits
against States in Federal courts was invalid under the 11th amendment,
something that they should have argued because it is an important
issue.
But, again, the Supreme Court agreed with General Pryor. He is being
criticized for winning cases in the Supreme Court as though he is the
one who is out of the mainstream. I don't think it takes any brains to
realize who is out of the mainstream. It is not General Pryor.
And we have heard criticism that he is insensitive to women's rights
because he argued in the case of U.S. v. Morrison that neither the
commerce clause nor the 14th amendment provided Congress with the
authority to enact one civil remedies provision of the Violence Against
Women Act. But the Supreme Court agreed with him again.
Further, General Pryor has been criticized as anti-environment
because of his argument in Solid Waste Agency of Northern Cook County
that the Army Corps of Engineers did not have the authority, under the
Federal Clean Water Act, to exercise Federal jurisdiction over entirely
intrastate bodies of water--in this case, an abandoned gravel pit.
He was arguing for his State, which is what attorneys general are
obligated to do. He even urged the Court not to reach the issue of
whether the Commerce Clause allowed Congress to regulate entirely
intrastate bodies of water. The Court did not reach the Commerce Clause
issue and again agreed with General Pryor's statutory interpretation
argument.
So I guess those who oppose Pryor are saying when the Supreme Court
agrees with you that an environmental statute should be interpreted in
accordance with its actual language, rather than expanded through
bureaucratic fiat, that makes you extreme

[[Page S10235]]

and anti-environment, especially when you win the case in front of the
Supreme Court. Talk about turning the world upside down.
General Pryor has even been criticized as insensitive to civil rights
concerns because of his argument in Alexander v. Sandoval that there is
no private right of action under title VI of the Federal Civil Rights
Act to challenge Alabama's policy of issuing drivers' licenses only to
English speakers--a policy that I understand is no longer in effect.
Once again, the Supreme Court agreed with his argument, holding that
Congress, not Federal courts, should create causes of action to enforce
Federal laws. That proposition should not be controversial, nor should
supporting it be held against General Pryor, who again won in the
Supreme Court.

Finally, let me just give one more example. The Supreme Court,
including Justice Souter, agreed with General Pryor's argument in the
Scheidler v. NOW case that Federal antiracketeering laws could not
properly be applied to pro-life protest groups who admittedly had not
engaged in any activities covered by those laws with respect to the
targets of their protests. So while General Pryor may have criticized
Justice Souter, they do not always disagree when it comes down to
interpreting the law.
Let me say this. A nominee is not an extremist--or should I put the
word ``extremist'' in quotes because it seems to be a special word that
is used so often by our colleagues--a nominee is not an extremist when
the positions he has taken have been consistently supported by Supreme
Court majorities. We know who the extremists are, and it isn't General
Pryor.
We will hear more about these cases, and I'm not saying Bill Pryor
has won all of these arguments at the Supreme Court. Not even the best
lawyers can win them all, and he did lose a couple in this last
session. But to say that Bill Pryor is ``out of the mainstream,'' when
he has been such a successful advocate for his State in the Nation's
highest Court, is plainly wrong.
Anybody who makes that argument should think twice before they make
that type of argument.
We are in the middle of a slow walk here, trying to make the Senate
look bad--not by Republicans but by the other side. Frankly, to
complain about double-tracking important things like a circuit court of
appeals judgeship, the third branch of Government in our society, I
think is hitting a little bit below the belt.
It is certainly not unusual for cloture votes on judgeship nominees
when the other side is filibustering for the first time in history
Federal judicial nominees. I made the mistake of saying the Fortas
nomination was the only filibuster up until now. I was wrong. I was
corrected by none other than former Senator Robert Griffin who led the
fight against Fortas. He said: We weren't filibustering, and they knew
it. They knew we had the votes to beat them up and down and they are
the ones who called for the cloture vote, which they barely won. They
only had 45 votes, and there were 12 who weren't there, many of whom
were going to vote against Fortas for justifiable reasons.
So these filibusters going on now are the only ones we've ever had in
the Senate. My colleagues on the other side are fond of saying: There
have been 140 Bush judges confirmed by us and only two have been
filibustered. That is two too many. Constitutionally, that is two too
many. One is one too many. I have to admit there were a few on our side
during the Clinton years who wanted to filibuster some of those judges.
I personally stopped them with the help of the leadership and others
who thought it through that we should not be filibustering judges. It
is the wrong thing to do. It should not be done, but it is being done
here.
Mr. SANTORUM. Mr. President, will the Senator yield?
Mr. HATCH. If the Senator will just wait for a few more minutes, I
want to make a point on Rule 4. For the life of me, I can't understand
how anybody reading the Judiciary Committee's Rule 4 would interpret it
any differently than the way I did. I was surprised to see my comments
during the Bill Lan Lee nomination used against me. What happened there
was, I was Chairman. We had the votes to stop the nomination. The
Democrats didn't want us to stop the nomination because it would have
been embarrassing and might have made it more difficult for them to
recess-appoint Lee, who I would have supported for any other job in
Government but not that one. Because I knew he would get there and he
would use the power of the civil rights office to bring litigation
against communities, municipalities who would have to give in rather
than spend millions of dollars in defense fees and accept full scale
racial quotas. My fears were confirmed. Because they recess-appointed
him and he did bring that kind of litigation.
But with the Lee nomination, the Democrats started a filibuster of
their own nominee. There was no reason for them to make any arguments.
I would have given them a vote up or down right there. They started the
filibuster. I, in graciousness, agreed not to have a vote. I have to
admit I myself was in error by making some of the statements I did
because I didn't realize the importance of this, nor had I even looked
at Rule 4. But let's look at this Rule.
It says: ``The chairman shall entertain. . . .'' That means this is a
rule that forces the chairman to entertain a nondebatable motion to
bring a matter before the committee to a vote. It is a way of forcing
the chairman to give a vote that you could not otherwise give if the
chairman decided not to do it.
``The chairman shall entertain a nondebatable motion to bring a
matter before the committee to a vote if there is objection to bringing
the matter to a vote without further debate''--a rollcall vote, in
other words. If the chairman refuses, they can then demand a rollcall
vote of the committee to be taken. It is nondebatable. It has to
happen. And ``debate shall be terminated if the motion to bring the
matter to a vote without further debate passes with 10 votes in the
affirmative, one of which must be cast by the minority.''
Anybody with brains can read that and say: That is a rule that forces
a recalcitrant chairman to have to call a vote. But any competent
person reading that can also conclude, as have I, having consulted with
the two Parliamentarians beforehand, that a chairman cannot be
foreclosed from his right to call a vote. Because if that were the
rule, that means the minority would always control whether there would
ever be a vote on a judge. That can't possibly be the rule, though that
is what Democrats now are trying to say it is, with regard to the
Committee's vote on General Pryor.
We are all well aware by now that Democrats invoked the Judiciary
Committee's rule 4 to try to block a committee vote on General Pryor's
nomination. Their interpretation of this rule was and is simply
incorrect, and let me explain why.
Rule 4, entitled ``Bringing a Matter to a Vote,'' was clearly
intended to serve as a tool by which a determined majority of the
committee could force a recalcitrant chairman to bring a matter to
vote. In fact, the rule provides, ``The Chairman shall entertain a non-
debatable motion to bring a matter before the Committee to a vote.'' On
July 23, there was no motion to bring a matter before the committee to
a vote. In fact, there was an objection to voting, which I overruled.
Thus, on its face, rule 4 was inapplicable to the Pryor nomination.
If we followed the interpretation that Democratic members of the
committee urged, it would mean that the committee minority would
essentially control the committee's agenda. Essentially, the
committee's chairman, on behalf of the majority, could not bring any
nomination or piece of legislation to a vote without the affirmative
vote of at least one member of the minority. So the chairman would have
no right to call for a vote--the minority could restrict that right at
their discretion.
No chairman would suffer such limitations on his power. The
limitation that exists in rule 4 as properly interpreted is entirely
reasonable: that all members of the committee's majority, plus one
minority member, can force the committee to have a vote over the
objection of the chairman--who, in that case, clearly would not be
representing his committee's majority. Rule 4 does not, as Democrats,
would currently, expediently, have it allow the minority to prevent a
vote. Rule 4

[[Page S10236]]

does not authorize filibusters in the Judiciary Committee.
Despite claims to the contrary, there has been no inconsistency in
the interpretation of this rule. During the Clinton administration, in
an effort to prevent the defeat in committee of a controversial Justice
Department nominee and spare both committee Democrats and the
administration considerable embarrassment, I chose not to exercise the
inherent power that I and all committee chairmen have to bring a matter
to a vote. President Clinton ultimately made a recess appointment of
the nominee. In retrospect, my graciousness to the other side, and my
reliance on rule 4 to accomplish this was admittedly not the best
course of action. I nevertheless believe that I had the power to bring
that matter to a vote, and that I used the discretion of the chairman
to decide not to do so.
In short, there was no violation of committee rules or process in
bringing the Pryor nomination to a vote on July 23, and any argument to
the contrary was merely a last-ditch effort to prevent the full Senate
from considering it.
Unfortunately, that effort continues, in a manner equally offensive
to the ultimate rules that govern the Senate, the U.S. Constitution.
The fact is, this was the fifth markup that General Pryor was on,
having had his confirmation hearing on June 11. And there were
continual Democratic efforts to try and thwart these markups every
time. I went along with a number of those efforts just out of
graciousness. But on July 23 everybody knew we were going to vote
because at the prior markup they invoked the two-hour rule, the
Democrats did, so that we couldn't possibly, during the time the Senate
was in session, vote on Mr. Pryor.
I said: Well, then we will meet after the Senate goes out, which
would get around the two-hour rule. That meant about 9 o'clock at night
that night, the Thursday before we finally voted. Everybody knew I had
the votes. Everybody knew I was going to go ahead. We gave them all day
to resolve any problems they had in this so-called ``investigation''
which is as phony as any investigation I have ever seen. By the time we
got ready, nobody told me about this, but by the time we got ready for
the vote or for the Senate to go out of session and for us to meet--and
we worked all day to make sure we would have a quorum--I was informed
that there was a personal exigency that existed, a legitimate personal
exigency, that was known about earlier in the day, and I agreed to not
continue the markup.
I put it over then until the next Wednesday, a full week, and said:
Get the staffs together, interview the four witnesses you want to,
interview General Pryor in the process, but next Wednesday we are going
to vote. There have been comments that our staff stalled that. That is
not true. I believe the distinguished Senator from Massachusetts tried
to make that point. That is not true.
As a matter of fact, the Democrats' staff refused to interview or ask
questions of Mr. Pryor who could have easily answered them all, and
would have, and in fact already had answered all of these questions at
his hearing and in writing. It was a phony ``gotcha'' type of a
situation which Democrats on the Judiciary Committee are putting
nominees through.
Let me talk about the religious problem. I am getting a little tired
of this. The outside groups have been outrageous with the smears they
have brought upon Republican judicial nominees. If you made one mistake
in your life or what they perceive to be a mistake, you are going to be
smeared because of it. That perceived mistake is going to be enough for
these groups to try to ruin your whole career. The tactics used against
Judge Kuhl are a perfect illustration. Her whole career she has had the
support of Democratic and Republican judges and everybody else in
California who really counts, it seems to me, as far as judges are
concerned. They found one thing they can beat into the ground, they
think. I don't think even that is valid. I think we can rebut that
case. And yet they are going to stop this brilliant woman who has a
well-qualified rating, their gold standard, from the American Bar
Association.
What is particularly offensive is what the outside groups have done
against some of our nominees because of religious beliefs. By the way,
throughout the extensive, lengthy, one-of-a-kind hearing on Judge
Pryor, there were consistent questions about his deeply held beliefs.
This has caused a lot of people to become very upset.
The PRESIDING OFFICER. The Senator from Utah has the floor.
Mr. SANTORUM. Will the Senator from Utah yield for a question?
Mr. HATCH. I am sorry. I am happy to yield for a question without
losing my right to the floor.
Mr. SANTORUM. I thank the Senator from Utah because he has hit on a
point that is deeply disturbing to me as a member of the Senate. I
understand the Constitution talks about, we shall establish no
religion, and that is generally termed, in many cases, the separation
of church and State, although the words ``separation of church and
State'' do not appear in the Constitution.
What appears to be going on in the Judiciary Committee by Members of
the other side of the aisle is not a separation of church and State,
but a separation of anybody who believes in church and faith from any
public role. I do not believe that is what the Constitution was founded
to do. I listened to the comments of the Senator from California who
said because of General Pryor's ``strongly held beliefs'' basically he
cannot be impartial.
So if you have strongly held religious beliefs, because of your
strongly held religious beliefs----
Mr. DURBIN. Will the Senator yield for a question?
Mr. SANTORUM. I will not. Because of those beliefs that are referred
to continually, the ``strongly held beliefs''----
Mr. DURBIN. Mr. President, I have a----
The PRESIDING OFFICER. The Senator from Utah has the floor and the
Senator has yielded for a question to the Senator from Pennsylvania.
Mr. DURBIN. Mr. President, parliamentary inquiry.
Mr. SANTORUM. Are the beliefs that are referred to--
Mr. DURBIN. Mr. President, parliamentary inquiry.
Mr. SANTORUM. Mr. President, the Senator yielded to me for a
question, which I am about to ask.
Mr. DURBIN. Parliamentary inquiry, Mr. President.
The PRESIDING OFFICER. The Senator will state it.
Mr. DURBIN. If a Member of the Senate characterizes the words of
another Member of the Senate incorrectly, can those words be taken
down?
The PRESIDING OFFICER. There is no such right.
Mr. DURBIN. I thank the Chair.
Mr. SANTORUM. I ask the Senator from Utah, when the other side uses
the term ``deeply held beliefs'' over and over again, which we have
heard on certain issues, would the Senator from Utah characterize what
those ``deeply held beliefs'' might pertain to, and on what issues, and
what they might tie to from the perspective of religious beliefs?
Mr. HATCH. At least in one instance over and over it was on the issue
of abortion. Several Democrats asked questions about that.
Mr. SANTORUM. With respect to abortion and Mr. Pryor's beliefs, if
the Senator from Utah will allow me, I would like him to comment on a
letter just received today, written by Carl Anderson, who is with the
Knights of Columbus. I ask unanimous consent that the letter be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Knights of Columbus,

New Haven, CT, July 30, 2003.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee,
U.S. Senate.
Dear Senator Hatch: I am writing to express concerns as to
the way the nomination of Alabama Attorney General Bill Pryor
for the federal appeals court in Atlanta is being handled in
the Senate.
Many have questioned Mr. Pryor's fitness for this position
because of his ``deeply held beliefs,'' in particular his
opposition to abortion. Yet this ``deeply held belief'' is
grounded in Mr. Pryor's adherence to his Catholic faith,
which unequivocally declares abortion to be a grave evil.
Raising Mr. Pryor's ``deeply held beliefs'' in terms of his
qualifications to serve on the

[[Page S10237]]

federal bench thus suggests a de facto religious test for
public office, something clearly prohibited by the
Constitution. Of even more concern, it comes perilously close
to suggesting that Catholics who faithfully adhere to their
church's teaching on abortion, and perhaps other public moral
issues, are unfit to serve their country in the federal
judiciary.
Those who fault Mr. Pryor's ability to serve on the federal
bench argue that his deeply held beliefs preclude him from
judging and applying the law impartially. In effect, they are
trying to put Mr. Pryor in the very uncomfortable and very
unjust position of choosing between following his faith or
serving his country. No candidate for any public office
should be put in such a position. As Attorney General of
Alabama, Mr. Pryor has already demonstrated an unquestioned
record of applying the law impartially. He has already shown
that one can be a faithful Catholic, with ``deeply held
beliefs'' and still render unimpeachable service to his
country and fellow citizens.
Perhaps it is worth remembering on this occasion that many
distinguished jurists have dissented from the Supreme Court's
decision in Roe v. Wade including the current Chief Justice
of the United States and former Justice Byron White. To
suggest that such jurists are unfit to serve on the Federal
Bench does a disservice to the confirmation process itself.
Moreover, it is worth reiterating that the Catholic Church
teaches that abortion is unjust, not as a matter of faith,
but as a matter of natural justice which obligates all
citizens regardless of religious belief or lack thereof. This
is attested to by the many persons of diverse religious
belief or none at all who find abortion to be gravely unjust.
As head of the world's largest Catholic fraternal
organization and as a former member of the United States
Commission on Civil Rights, I am dismayed that the course of
Mr. Pryor's nomination compels me to make a point which by
now should be obvious: a good Catholic can also be a good
public servant. Much as I would wish otherwise, a
continuation of the trend that critics of Mr. Pryor's
nomination have set in motion will compel American Catholics
to face religious bigotry of a kind many of us thought to be
extinct in this nation. I urge that Mr. Pryor be judged
solely on his ability, his qualifications and his judicial
temperament.
Respectfully,
Carl A. Anderson,
Supreme Knight.

Mr. SANTORUM. I want to refer to a couple of paragraphs and I want
the Senator to comment, because this is the point that I think is very
important. There is a code word going on here--code words. When you
hear the term ``deeply held beliefs''--I know the Senator from Illinois
was upset when I used the term ``religious'' as a characterization. I
think it is a completely accurate characterization of exactly what is
going on. I am not alone. I will read a portion of the letter:

Many have questioned Mr. Pryor's fitness for this position
because of his ``deeply held beliefs,'' in particular his
opposition to abortion. Yet, this ``deeply held belief'' is
grounded in Mr. Pryor's adherence to his Catholic faith,
which unequivocally declares abortion to be a grave evil.

I am ending the quotation from Mr. Anderson's letter, and I just
suggest that it is obvious to anyone that this code word is an
antireligious bias--not an antireligious bias if you don't hold your
faith deeply, but only if you do. Would the Senator from Utah care to
comment on this letter I just quoted briefly from?
Mr. HATCH. First, I have seen the letter dated July 30, 2003, which I
believe the Senator has put into the Record. The first time I have seen
it is tonight.
Mr. SANTORUM. Yes, the July 30 letter.
Mr. HATCH. Right. I am concerned about this. I know some of these
outside groups have been doing this regularly. I personally do not
believe the distinguished Senator from California is--and I hope none
of the other Democrat Senators on the committee are--against Mr. Pryor
because of his religious beliefs. But I have to admit that people all
over the country have been calling me and talking to me and saying, how
could it be anything else? People are drawing that conclusion, and I
will be honest with you, I am concerned about it.
Mr. SANTORUM. If the Senator will yield for a further question, I
want to read the next paragraph and get his comment:

Raising Mr. Pryor's ``deeply held beliefs'' in terms of his
qualifications to serve on the Federal bench thus suggests a
de facto religious test for public office, something clearly
prohibited by the Constitution.

Would the Senator from Utah agree that the religious test for holding
an office with the Government of the United States of America would be
unconstitutional?
Mr. HATCH. There is no question about that. We all have to agree that
our Constitution states no religious test shall ever be required as a
qualification to any office of public trust in the United States. I
don't believe any Senator would intentionally impose a religious test
on the President's judicial nominees. I do not think any Senators are
guilty of anti-religious bias. However, I am deeply concerned that some
are indirectly putting at issue the religious beliefs of several
judicial nominees.
I will give you one illustration. During the Pryor hearing, General
Pryor's religion was an issue--and this is why I have raised it, which
I have never done before. One Senator accused General Pryor during the
hearing of ``asserting an agenda of your own, a religious belief of
your own.'' In his opening statement, another Senator stated:

``In General Pryor's case, his beliefs are so well known,
so deeply held that it is very hard to believe that they are
not going to deeply influence the way he comes about saying
`I will follow the law,' and that would be true of anybody
who had very deeply held views.''
The only deeply held views that I know outside of belief in
the law would be his own personal religious beliefs. I will
just say this on another point. On the subject of Roe v.
Wade, Senator Schumer said, ``I for one believe that a judge
can be pro-life, yet be fair, balanced, and uphold a woman's
right to choose. But for a justice to set aside his or her
personal views, the commitment to the rule of law must
clearly supersede his or her personal agenda. . . . But based
on the comments Attorney General Pryor has made on the
subject, I have some real concerns that he cannot because he
feels these views so deeply and so passionately.''

I don't know how you read it any other way.
Another Senator told General Pryor:

I think the very legitimate issue at question with your
nomination is whether you have an agenda, and that many of
the positions you have taken do not reflect just an advocacy,
but a very deeply held view and a philosophy, which you are
entitled to have, but you are also not entitled to get
everyone's vote.

As you know, General Pryor is openly pro-life.
Mr. SANTORUM. If the Senator will yield, does the Senator from Utah,
who I know is not Catholic, know that as part of the Catholic faith,
one of the central teachings with respect to faith and morals is that
it is not an option under the Catholic church doctrine to be a faithful
Catholic and not be pro-life. It is a core teaching of the church. It
is not an optional teaching or a recommended teaching; it is a core
teaching of the church. So to be a faithful Catholic, according to the
church, someone has to embrace this opposition to abortion. Is the
Senator aware of that?
Mr. HATCH. Yes. I am so advised. I have studied the Catholic faith
and I respect it deeply, as I do all religions.
Mr. SANTORUM. So according to what the Senator has just said, someone
who considers oneself a faithful Catholic, faithful to the core
teachings of the Catholic church, which leaves no leeway on the issue
of abortion, under that understanding, someone who has a deep faith and
understands that with deep faith as a Catholic comes the requirement to
be against abortion, that as a result of that deep faith and as a
result of that deep faith in Catholicism, having to subscribe to the
church's teaching on abortion, would that not lead, in a sense, to a
prohibition by some Members of having anybody who is a faithful
Catholic as a member of the judiciary?
Mr. HATCH. I cannot speak to that. All I can say is that I will take
the Senator's statement at face value, as I know he is a practicing
member of the Catholic faith, and I respect him for that. I know he is
very sincere, and I know he has even written about it. But I am
concerned.
Three of the people we have been told will be filibustered are
traditional pro-life, Catholic conservatives. Certainly, Pryor is one
of them. Kuhl is another. Holmes is another. It is a matter of great
concern. I have to say that these inside-the-Beltway outside groups
will use anything; they will distort a person's record. It is abysmal
what they are doing, and they are well heeled to the tune of millions
of dollars, which they spend spreading this bile all over the Senate.
Unfortunately, I believe there are some in this body who do not decry
what they are doing.
Mr. SANTORUM. Mr. President, will the Senator yield for another
question?

[[Page S10238]]

Mr. HATCH. I will be happy to yield for another question without
losing my right to the floor.
Mr. SANTORUM. Mr. President, I just described what is my
understanding as a Catholic of what the teachings of the church are and
what the responsibilities as a faithful Catholic are as a member of the
church. I also understand the oath of office you take and the role that
you play as a civil servant in a government and that you have an
obligation to serve and to adhere to the law, particularly when you are
sworn to uphold that law.
Are there any examples where Attorney General Pryor upheld the law
even though he, as a Catholic, as a person of deep beliefs, went ahead
and followed the law even though his personal viewpoints may have been
different?
Mr. HATCH. I think there are all kinds of examples. Let me go through
a few, if I can. Hopefully, this will be helpful in what the good
Senator has asked for.
General Pryor's record speaks with far more authority and with much
greater eloquence than the fulminations against him. His record of
enforcing the Supreme Court dictates on abortion is unquestioned. He
has enforced them all. Despite criticizing them all as a traditional
pro-life, Catholic conservative, he has criticized abortion but he has
upheld the law.
Although he has been attacked for his federalism arguments before the
Supreme Court, the Supreme Court sided with him in most of those cases.
Arguing that Congress does not have the power that it has assumed
through certain legislative acts is not activist or radical. It is
principled, entirely consistent with our constitutional separation of
powers, and it is General Pryor's duty as State attorney general.
In all the federalism cases he has argued, he advocated that only
certain portions of Federal laws were unconstitutional. In all cases,
remedies remained available for aggrieved parties or the Federal
Government. I cited some of these cases earlier.
Let me give another illustration. His critics have also attempted to
portray him as an official without the respect for the separation of
church and State. Again, it is simply beyond dispute that his record
proves his repeated ability to enforce the law regardless of his strong
personal religious beliefs.
In an effort to defeat challenges to school prayer and the display of
the Ten Commandments in the Alabama Supreme Court, both the government
that appointed General Pryor and Alabama Chief Justice Roy Moore urged
General Pryor to argue that the Bill of Rights does not apply to the
States.

General Pryor refused, even though his personal beliefs were
different, and he argued the case on much narrower grounds despite his
own deeply held Catholic faith and personal support for both of those
issues.
General Pryor has always been attacked for his statements urging
modification or repeal of section 5 of the Voting Rights Act. However,
despite General Pryor's well-documented concerns about section 5 of the
Voting Rights Act, he has vigorously enforced all provisions of the
act. He successfully defended before the Supreme Court several
majority-minority voting districts approved under section 5 from a
challenge by a group of white Alabama voters. He feels deeply about
these issues.
He also issued an opinion that the use of stickers to replace one
candidate's name for another on a ballot requires preclearance under
section 5. Again, General Pryor enforced the law despite its conflicts
with his beliefs.
Despite the distortions, half-truths, and outright falsehoods we have
heard about him from the usual leftist inside-the-Beltway interest
groups, General Pryor is a diligent, honorable, faithful man whose
loyalties as a public servant have been to the law and its impartial
administration.
He has told us under oath he will continue to follow the law, just as
he has demonstrated in his distinguished career in Alabama. We should
be proud to give his nomination an up-or-down vote.
Throughout his hearing, it was one question after another on
abortion--one question after another--and he made it clear that as much
as he thinks that the outcome of the case of Roe v. Wade is an
abomination, because it has resulted in the death of millions of unborn
children--and he was very straightforward about it, very honest about
it, and was complimented by my colleagues for his honesty, yet they
will not accept his honesty on this topic--he said he would enforce Roe
v. Wade, which is the law.
Mr. SANTORUM. Mr. President, isn't there a case of the partial-birth
abortion law in Alabama where he actually gave advice that would be
contrary to what his personal beliefs are with respect to the issue of
abortion?
Mr. HATCH. After the Supreme Court's decision in Stenberg v. Carhart,
he upheld that law by ordering state officials not to enforce the
conflicting Alabama partial-birth abortion law. Earlier, he had
enforced Alabama's partial-birth abortion law narrowly, to ensure
consistency with Supreme Court's dictates in Planned Parenthood v.
Casey. Even though he disagrees violently with both of those cases from
a personal religious standpoint, but he enforced and upheld those laws,
in the face of criticism from many of his conservative friends in
Alabama.
Let me read one other item. At his hearing, I asked him this
question:

So even though you disagree with Roe v. Wade, you would act
in accordance with Roe v. Wade on the Eleventh Circuit Court
of Appeals?

This was his answer:

Mr. Pryor. Even though I strongly disagree with Roe v.
Wade, I have acted in accordance with it as attorney general
and would continue to do so as a Court of Appeals judge.
Chairman Hatch. Can we rely on that?
Mr. Pryor. You can take it to the bank, Mr. Chairman.

To be honest with you, that is the way he is, and he is being
condemned for that.
I have to say that some of my colleagues on the other side have
become tremendously annoyed and hurt by the issue of religion being
brought up in this matter, but the attacks on personal beliefs came
originally from these inside-the-Beltway groups. They are well heeled,
with money coming out of their ears, hiring all kinds of far left
liberal lawyers to make these smear attempts and, frankly, that is what
is distorting this whole process.
I suggest to my friends on the other side, they are going to have to
start some day standing up to these people, but they do not seem to be
able to do it.
Frankly, during the Clinton years, I stood up to some of the right
wing groups that were occasionally trying to distort somebody's record.
We did not see anywhere near what we are seeing today but I stood up. I
am not asking them to do something I did not do.
Mr. SESSIONS. Mr. President, will the Senator yield for a question?
Mr. HATCH. I will be glad to yield without losing my right to the
floor.
Mr. SESSIONS. I remember a conservative group demanded of Senator
Hatch, with regard to Clinton nominees, that he sign a Hatch pledge. I
ask the Senator how he handled outside conservative pressure groups at
that time?
Mr. HATCH. Mr. President, as my colleague knows, I had to stand up to
some in my own caucus. Not many. There were some, one or two, who
wanted to filibuster President Clinton's nominees. As the Senator will
recall, I stood up to that and said we are not going to filibuster
judicial nominees. It is not right, and I believe it is
constitutionally unsound.
Some of the outside groups were sincere but they wanted to--I
believed them to be sincere but wrong--distort some of these matters,
and I refused to allow them to do it. They demanded to testify in a
variety of cases, and I told them no, we are not going to denigrate the
judicial process with that type of stuff.
Mr. SESSIONS. If the Senator will yield for a further question?
Mr. HATCH. I am happy to yield without losing my right to the floor.
Mr. SESSIONS. I note that the Senator made quite clear that elected
Senators have the responsibility to decide matters, and they cannot be
driven by forces outside. We have to do it on the facts and the law,
and he has been honorable and consistent on that. He deserves great
praise. Some of the criticism that has come his way from those who are
now altering the historic ground rules of confirmation is unjust and
wrong.

[[Page S10239]]

As a former attorney general of Alabama and knowing that the attorney
general had the power in Alabama to direct district attorneys on how to
enforce certain Alabama laws, I ask the distinguished chairman of the
Judiciary Committee is he aware that even though Attorney General Pryor
strongly believes that partial-birth abortion is one of the worst forms
of abortion of all, that he wrote a letter directing district attorneys
to narrowly construe an Alabama partial-birth abortion statute because
he had concluded under the Supreme Court law that parts of it was
unconstitutional?
Mr. HATCH. Well, the Senator is right.
He is a very serious practicing Catholic. He despises Roe v. Wade. He
makes very strong and principled arguments against it. He did not mince
any words when he was asked, Did you call it an abomination? And he
said: Yes, I did, sir.
When they asked why, he said he called it an abomination because,
words to the effect, he believes that it led to the deaths of millions
of unborn children. Yet when it came down to enforcing the law on
partial-birth abortion, that he despises, he enforced the law, and he
directed his prosecutors in the State to do likewise.
I do not know whether we can find any better people than that. There
are a lot of politicians who have been attorneys general who I do not
think would have done that in the face of their personal beliefs, but
he did because he is dedicated to the law. He knows if one does not
uphold the law, even if they disagree with it, it would not be long
until we would not have any laws. The Constitution would go itself, and
he understands that. He is a brilliant man, graduated magna cum laude
from Tulane, which is a fine law school, and was editor in chief of the
Law Review, something that very few people have the privilege of doing,
and that is because he was one of the best students in his class.
Frankly, he has more than shown an aptitude to the law and an ability
to follow the law.
Mr. SESSIONS. If the Senator will yield for another question.
Mr. HATCH. Without losing my right to the floor, I will be happy to
yield.
Mr. SESSIONS. Is the Senator aware, being an Alabama official myself
and keeping up with these things, that when Attorney General Pryor, not
required to do so but following what he believed was the proper
procedure, directed the district attorneys who would be enforcing this
partial-birth abortion law to construe the statute narrowly, that he
was criticized by pro-life groups, sincere, wonderful people, and one
went so far as to say that his decision had gutted the partial-birth
abortion law?

Mr. HATCH. That is exactly right. He took a lot of flack for it and
he believed the way they did, but he also made it clear that that is
the law and that he was going to follow it. He followed it as an
elected political official.
Now, if he can follow the law impartially as an elected political
official, imagine the honor he would bring to the bench, where it's his
job to be impartial. He did not have to do it as an elected political
official, although I would not have respected him had he not, but as a
judge, I think we have more than ample evidence that this man would
follow the law regardless of his personal beliefs. Yet he has been
smeared by the outside groups on his personal beliefs. It is just that
simple.
Mr. SESSIONS. Mr. President, one more question.
Mr. HATCH. Without losing my right to the floor.
Mr. SESSIONS. I have researched his record and background. I find
that even though he does firmly believe that abortion is an immoral
practice, that other than the matter I just raised about directing on
partial-birth abortion not to enforce parts of the law, he has not
taken any action in any way to use the power of his office to undermine
the law of the Supreme Court on that matter. I just wonder if the
Senator would agree with that?
Mr. HATCH. I do agree with that. The Senator knows Bill Pryor better
than anybody. He worked for the distinguished Senator when he was
attorney general. I am absolutely amazed at how many Democrats and
people of diversity and others in Alabama are supportive of him. The
people who knew him best are the people who support him. The people of
Alabama know him best. Yet we are going to second-guess that, for
political reasons?
Mr. SANTORUM. Will the Senator yield?
Mr. HATCH. I am happy to yield, without losing my right to the floor.
Mr. SANTORUM. To get to the rest of this letter by Carl Anderson, who
is the head of the Knights of Columbus nationwide, I want to read the
concluding paragraph and ask the Senator to comment as to whether he
agrees with Mr. Anderson in his conclusion as to what is going on with
this nomination. He says this:

As head of the world's largest Catholic fraternal
organization and as a former member of the United States
Commission on Civil Rights, I am dismayed that the course of
Mr. Pryor's nomination compels me to make a point which by
now should be obvious: a good Catholic can also be a good
public servant. Much as I would wish otherwise, a
continuation of the trend that critics of Mr. Pryor's
nomination have set in motion will compel American Catholics
to face religious bigotry of a kind many of us thought to be
extinct in this nation.

Does the Senator agree that such continuation of activity could lead
to such bigotry?
Mr. HATCH. Well, I believe it can be, and I believe there is some
from the outside groups. I do not think there is any question. I would
not want to attribute that to any of my colleagues on the Judiciary
Committee, although I have to admit this issue of abortion is becoming
a litmus test issue to Democrats, that is pro-abortion. I think that is
wrong. I remember what the media did to Republicans during the Reagan
administration, continually trying to say there was a litmus test. I
know there was not because the person who vetted all the judges is a
former staffer of mine who is now on the Michigan Supreme Court. I know
it is not being done by this administration. But literally, Democrats
are making abortion a litmus test issue.

The Democrats are fond of saying, yes, but we have passed all kinds
of Bush judges, 140 of them so far. Well, they cannot stop them all. So
they selectively pick people like General Pryor who clearly has very
strongly held views but who clearly has abided by the law. They ignore
that he abided by the law and attack him on his strongly held views. In
large measure, it comes down to the issue of abortion because he
differs with them on the policy issue of abortion.
Mr. SANTORUM. If the Senator will yield for an additional question.
Mr. HATCH. Without losing my right to the floor.
Mr. SANTORUM. Is the Senator familiar with a letter written by Austin
Ruse, president of the Catholic Family and Human Rights Institute,
which was sent yesterday?
Mr. HATCH. I just saw it tonight, so I am familiar. I have not read
it in detail, but I am familiar with it.
Mr. SANTORUM. Mr. President, I ask unanimous consent that this letter
be printed in the Record.
Mr. SANTORUM. I say to the Senator from Utah that I wanted to bring
up this letter. This is not the only Catholic group that has expressed
concern about what is code worded as ``deeply held beliefs'' but seems
to be a little stronger than that. I will read the second paragraph of
this letter and ask the Senator to comment again on this:

I think of the young mother, struggling to raise her
children in what is a challenging culture. She raises them to
be good citizens and good Catholics. What should this mother
tell her children? ``Sorry, in order to serve our government,
you will have to shed your Catholic beliefs.'' Putting
Catholics in this position is shameful and not a proper
measure of our great land?

I ask the Senator if he has any thoughts on this issue?
Mr. HATCH. This is the first time I have seen this letter. To him,
this is a very important issue. The views he expresses are drawn from
what he's heard at the hearing and the markup. Reasonable people can
draw these conclusions from the markup, from the debate.
It is coming down to where abortion is the be-all and end-all issue
to my colleagues on the other side. Sure, they cannot vote against
everyone. I don't know how many of these people are pro-life or pro-
choice. I never ask anyone that.
The fact is, I can see why people are drawing this conclusion. I will
give a

[[Page S10240]]

few other reasons they are drawing that conclusion before we are
through here tonight.
Mr. SANTORUM. If the Senator will yield for another question, I ask
unanimous consent to have printed an article by Bishop Charles J.
Chaput, Archbishop of Denver, written as a result of this nomination.
The article talks about a friend of his in Alabama and the fact there
were not very many Catholics in Alabama in the 1960s when he was
growing up and how Alabama has changed to the point where they can
elect a Catholic as their attorney general.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From www.archden.org, July 30, 2003]

Some Things Change, Some Things Really Don't

Some things change, and some things don't.
In the summer of 1963, a friend of mine--she was just 11 at
the time--drove with her family to visit her sister, who had
married and moved away to Birmingham, Ala. Stopping for gas
in a small Alabama town on a Sunday morning, her father asked
where they could find the local Catholic church.
The attendant just shrugged and said, ``We don't have any
of them here.''
The family finished gassing up, pulled out of the station--
and less than two blocks away, they passed the local Catholic
church.
Most people my age remember the '60s in the South as a time
of intense struggle for civil rights. Along with pervasive
racial discrimination, Southern culture often harbored a
suspicion of Catholics, Jews and other minorities. Catholics
were few and scattered. In the Deep South, like Alabama,
being Catholic often meant being locked out of political and
social leadership.
Today, much of the old South is gone. Cities like Atlanta
and Raleigh-Durham are major cosmopolitan centers. Time,
social reform and migration have transformed the economy
along with the political system. The South today is a tribute
both to the courage of civil rights activists 40 years ago,
and to the goodness of the people of the South themselves.
Most people, most of the time, want to do the right thing.
And when they change, they also change the world they
inhabit, which is one of the reasons why the Archdiocese of
Atlanta can now draw thousands of enthusiastic Catholic
participants to its Eucharistic Congress each year in a state
where Catholics were once second-class citizens. It also
explains how a practicing Catholic, William H. Pryor, can
become Alabama's attorney general--something that was close
to inconceivable just four decades ago.
I've never met Mr. Pryor, but his political life is a
matter of public record. He has served the State of Alabama
with distinction, enforcing its laws and court decisions
fairly and consistently. This is why President Bush nominated
him to the 11th U.S. Circuit Court of Appeals, and why the
Senate Judiciary Committee approved him last Wednesday for
consideration by the full Senate.
But the committee debate on Pryor was ugly, and the vote to
advance his nomination split exactly along party lines. Why?
Because Mr. Pryor believes that Catholic teaching about the
sanctity of life is true; that the 1973 Supreme Court Roe v.
Wade decision was a poorly reasoned mistake; and that
abortion is wrong in all cases, even rape and incest. As a
result, Americans were treated to the bizarre spectacle of
non-Catholic Senators Orrin Hatch and Jeff Sessions defending
Mr. Pryor's constitutionally protected religious rights to
Mr. Pryor's critics, including Senator Richard Durbin, an
``abortion-rights'' Catholic.
According to Senator Durbin (as reported by EWTN), ``Many
Catholics who oppose abortion personally do not believe the
laws of the land should prohibit abortion for all others in
extreme cases involving rape, incest and the life and the
health of the mother.'' This kind of propaganda makes the
abortion lobby proud, but it should humiliate any serious
Catholic. At a minimum, Catholic members of Congress like
Senator Durbin should actually read and pray over the
``Catechism of the Catholic Church'' and the encyclical
``Evangelium Vitae'' before the explain the Catholic faith to
anyone.
They might even try doing something about their ``personal
opposition'' to abortion by supporting competent pro-life
judicial appointments. Otherwise, they simply prove what many
people already believe--that a new kind of religious
discrimination is very welcome at the Capitol, even among
elected officials who claim to be Catholic.
Some things change, and some things don't. The bias against
``papism'' is alive and well in America. It just has a
different address. But at least some people in Alabama now
know where the local Catholic church is--and where she
stands--even if some people in Washington apparently don't.

Mr. HATCH. This article reads in part:

I have never met Mr. Pryor, but his political life is a
matter of public record. He has served the State of Alabama
with distinction, enforcing its laws and court decisions
fairly and consistently. This is why President Bush nominated
him to the 11th U.S. Circuit Court of Appeals, and why the
Senate Judiciary Committee approved him last Wednesday for
consideration by the full Senate.
But the committee debate on Pryor was ugly, and the vote to
advance his nomination split exactly along party lines. Why?
Because Mr. Pryor believes that Catholic teaching about the
sanctity of life is true; that the 1973 Supreme Court Roe v.
Wade decision was a poorly reasoned mistake; and that
abortion is wrong in all cases, even rape and incest. As a
result, Americans were treated to the bizarre spectacle of
non-Catholic Senators Orrin Hatch and Jeff Sessions defending
Mr. Pryor's constitutionally protected religious rights to
Mr. Pryor's critics, including Senator Richard Durbin, an
``abortion-rights'' Catholic.

He concludes with:

Some things change, and some things don't. The bias against
``papism'' is alive and well in America. It just has a
different address. But at least some people in Alabama now
know where he local Catholic church is--and where she
stands--even if some people in Washington apparently don't.

I ask the Senator from Utah if he has seen that article.
Mr. HATCH. I had not seen it before tonight, that I was aware of. I
had been told the Catholic bishop had written this article. I can see
why he has drawn this conclusion. I can see why anyone would.
I hear the moaning and groaning and scheming, but I happen to be a
member of the Church of Jesus Christ of Latter-day Saints. I belong to
the only church in the history of this country that had an
extermination order out against it, where our people were brutally
murdered and driven from State to State leaving trails of blood.
I don't like religious discrimination in any way. I can see why
people are drawing these conclusions from this debate. I can see why
people draw such conclusions when you start attacking a man because he
has deeply held beliefs. Earlier, I read one statement from Pryor's
hearing, questioning his religious beliefs. It was made; and anyone
with brains would say, what are his deeply held beliefs? He is a
traditional pro-life Catholic conservative. And I guess that is not a
good thing to be if you're before this body seeking confirmation to the
federal bench.
I think it is a good thing to be. I don't think it is bad to be a
liberal pro-life Catholic. I think it is important to live your
religion, regardless of what religious persuasion you are. I understand
religious discrimination. The name of my church is the Church of Jesus
Christ of Latter-day Saints, yet I am unacceptable in certain groups
because they don't think we are Christians. I will match my
Christianity up against anyone's. I read the Bible all the time. I try
to read it from beginning to end every year. I pretty well do that. It
is the greatest book in the world. And it is the greatest literature.
But I understand discrimination. Some people will not handle the music
I write because they don't think I am Christian. I don't mean to bring
that up here except that it applies. I understand that. I understand
why people feel this way. If my colleagues on the other side don't
understand it, I say shame on them.
When abortion becomes the be-all and end-all in the judicial
nomination process--which is what these outside groups, almost every
one of them, are committed to on the Democratic side--it is a serious
issue. There are serious decent people on both sides of that issue. But
when it becomes the be-all and end-all litmus test whether a person can
serve--that's wrong. And don't give me the argument we have approved
all kinds of people who may be pro-life. Of course, Members cannot vote
against everybody.
But we are filibustering, for the first time in history, good people,
judicial nominations to the Federal courts of the United States of
America, for the first time in history. I know a lot of it comes down
to abortion. I did not let that happen when I was chairman during the
Clinton years. I don't think it should happen right now, especially
somebody such as Pryor who has a reputation for obeying and standing up
for the law even though he disagrees with it.
As a politician he has that reputation. I imagine if he can do it as
a politician, he can do it and we can take his word on it that he would
abide by the law and sustain the law of the land as a judge. Yet the
principal argument against him is that he won't enforce the law
regarding abortion. There are

[[Page S10241]]

other arguments used, all of which are false, in my opinion. This
abortion issue is becoming the be-all and end-all issue for Democrats
in the Senate. There is always somebody who wants to enforce an
abortion litmus test, but we stopped it on our side. It ought to be
stopped on their side.

Mr. SANTORUM. If the Senator will yield for another question, I
sincerely thank the Senator from Utah for his yielding to me for these
questions and for his very articulate defense of this nominee and the
principle which I believe and I think the Senator believes in.
One of the reasons I brought the article up was, many people outside
of this Chamber--not just Catholic, not just Christian, but of all
faiths--are deeply concerned about what is going on in this Chamber. I
thank the Senator for his willingness to stand up and to have the
courage to articulate that. I make the point that he is not alone in
coming to the conclusion he has come to, that many people in this
Chamber have come to, that this litmus test that is being applied
ultimately is a religious one.
Mr. HATCH. The practical application.
Mr. SANTORUM. Which is a very threatening thing.
I say for the record, as a pro-life Catholic, I voted for hundreds of
Clinton nominees who I knew were not pro-life--hundreds of them--never
voted against one of them, never filibustered any of them. I will match
up my fervor in defense of human life against anyone in this Chamber.
But not once did I vote against one.
Why? Because that is not my role as a Senator, as a civil servant. I
know my duties under the Constitution. I know my role. I know what I am
supposed to do. What we are experiencing here now is not, again, the
separation of church and state but the separation from anybody who is
faithful to their church from the state. That is turning separation of
church and state that would cause any of the Founders to be spinning in
their grave today. It is exactly what--you can call it anything you
want--but that is exactly what is going on.
The greatest of the freedoms we have in this country, the greatest
that any country can have, is the freedom to believe the freedom to
think. Because if you don't have the freedom to think what you want and
the freedom to do what you want, the freedom to speak, to assemble--the
freedom to do anything else is meaningless. It is the first of all
freedoms. That is under assault in this process.

I commend the Senator from Utah for standing up in defense of this.
Mr. HATCH. If my colleague will stay a few minutes longer, because I
want to make one more point in this area and it needs to be made--a
couple maybe.
I believe the Senator has put the letters and op-ed piece from the
Catholic Leader into the Record.
I also ask unanimous consent to have printed in the Record--because
these are people who are good people writing these letters. And they
are just starting. An avalanche is coming. This is from the Union of
Orthodox Jewish Congregations of America, July 23:

Dear Senator Hatch: We write to you with regard to the
Judiciary Committee's consideration of the nomination of
William Pryor, the current Attorney General of the State of
Alabama, to the U.S. Court of Appeals for the Eleventh
Circuit.
The Union of Orthodox Jewish Congregations of America, the
nation's largest Orthodox Jewish umbrella organization
representing nearly 1,000 congregations nationwide, is a non-
partisan, religious organization and--like most other
organizations in the American Jewish community--it has been
the UOJCA's longstanding policy neither to endorse nor oppose
judicial nominees in the confirmation process. However, to
our dismay, we have witnessed several of our community's
organizations deviate from this shared policy in recent weeks
and oppose the confirmation of Mr. Pryor.
Moreover, we are profoundly troubled by the manner in which
this opposition has been framed. We thus feel compelled,
unlike our fellow communal organizations, to remain faithful
to our non-endorsement policy but express our view on a
critical issue that has been raised in connection with this
nomination--Mr. Pryor's personal religious faith and his
capacity to serve as a federal judge in light of that
personal faith.
As a community of religious believers committed to full
engagement with modern American society, we are deeply
troubled by those who have implied that a person of faith
cannot serve in a high level government post that may raise
issues at odds with his or her personal beliefs. There is
little question in our minds that this view has been the
subtext for some of the criticism of Mr. Pryor. We urge you
and your colleagues to emphatically reject this aspersion and
send a clear message that such suggestions, whether explicit
or implied, are beyond the pale of our politics. In our view,
Mr. Pryor's record as Alabama's Attorney General demonstrates
his ability to faithfully enforce the law, even when it may
conflict with his personal beliefs.
The role of religion and of religious citizens in American
life was much discussed during the last presidential
campaign. To our nation's credit, it was discussed in a
serious and meaningful way, which revealed a national
consensus favoring a society where citizens of many faiths
are not only welcome in our society, but encouraged to bring
their faith into our nation's ``public square.'' We urge you
to ensure that the deliberations over William Pryor's
nomination do not undermine the great progress we have seen
on this issue so critical to America's civil society.
We pray your committee's deliberations will be fair and
serve the nation well.

There are a lot of people concerned about this around here. Let me
make this point. I want to respond to the concerns of my dear friend,
Senator Feinstein. She is one of my dearest friends in this body. I
think the world of her.
She made comments about an ad that used the slogan, ``Catholics need
not apply.'' I don't have a copy of it here on a poster.
She used that because she wants us to decry this ad.
Well, I am not happy with this ad.
But I can see why people have done this, because they believe that
this--these debates are devolving to the point of attacking a person
for his or her personal beliefs, in the case of Pryor, Kuhl, Holmes,
others.
Let me respond to Senator Feinstein's concerns about the ad that used
the slogan ``Catholics need not apply.'' In fact, it was the liberal
groups, the liberal inside-the-beltway groups, that used the slogan
``Catholics need not apply'' to argue against Republicans for
supporting the Charitable Choice legislation in 2001.
Let me put one of these ads up, along with the words of the Americans
United for Separation of Church and State. Here is the paragraph down
here:

Ashcroft's Charitable Choice provisions allow a government-
funded program to hang a sign that says ``Catholics need not
apply.''

I will not read the rest of it. We will put it into the Record.
I ask unanimous consent that the letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Americans United Urges Senate To Reject Ashcroft Nomination for
Attorney General

BUSH NOMINEE'S VIEWS ARE `OUTSIDE THE MAINSTREAM,' SAYS AU'S BARRY LYNN

In written testimony submitted to the U.S. Senate Judiciary
Committee, Americans United for Separation of Church and
State today urged senators to reject the nomination of John
Ashcroft for attorney general.
``[W]e at Americans United have come to the conclusion that
Senator Ashcroft's policy positions and legal opinions are so
far outside the mainstream that it is doubtful he could
enforce the very laws and rights that the attorney general
must protect and uphold,'' said Barry W. Lynn, executive
director of Americans United. ``We call on this committee to
reject his confirmation.''
In his statement to the Senate panel, Lynn noted that
Ashcroft has frequently expressed contempt and disdain for
the Supreme Court and its legal precedents. (Hearings on the
nomination begin today.)
For example, Lynn pointed to Ashcroft's comments to the
Christian Coalition in 1998, where the former Missouri
Senator said, ``A robed elite have taken the wall of
separation designed to protect the church and they have made
it a wall of religious oppression.''
Responded AU's Lynn, ``Ashcroft's characterization of the
Supreme Court as a `robed elite' shows a lack of respect
unbefitting a candidate for attorney general. It is a phrase
more commonly associated with religious extremists and anti-
government militias than our nation's chief law enforcer and
protector of civil rights and liberties.''
Lynn also told the Senate committee that Ashcroft's
legislative efforts reflect a disregard for constitutional
principles.
``Senator Ashcroft's contempt for First Amendment case law
is not merely rhetorical, but also took legislative form,''
Lynn said. ``During his sole Senate term, Ashcroft
developed legislation called `charitable choice,' a plan
that allows religious groups to receive taxpayer funds to
perform government services and then discriminate in the
employment of staff people to run the program.
``Ashcroft's Charitable Choice provisions allow a
government funded-program to hang

[[Page S10242]]

a sign that says `Catholics Need Not Apply' or `Unwed Mothers
Need Not Apply,' '' Lynn added. ``Such a scheme amounts to no
less than unconstitutional government-funded employment
discrimination.''
Lynn found Ashcroft's comments to students at Bob Jones
University in 1999 particularly revealing about the attorney
general nominee's commitment to government neutrality on
religion. In the speech, Ashcroft said that America has ``no
king but Jesus.''
``Such a statement shows a total lack of regard for the
principle that it is the U.S. Constitution that serves as the
basis for our laws and national life, not one faith
tradition,'' said Lynn. ``Our Constitution guarantees
unqualified religious liberties for each of us, regardless of
our beliefs.''
Ultimately, Lynn argues that Ashcroft's hostility for our
constitutional principles disqualify him for the position of
attorney general.
``As the nation's top law enforcement officer, the attorney
general must represent all Americans,'' Lynn noted. ``He must
stand for the rights of Christians, Jews, Muslims, Buddhists,
and Hindus. He must advocate for those who are completely
devout about religion as well as those who are totally
indifferent toward it. He must understand certain things
about America--that the nation was not founded on any one
particular set of religious beliefs but rather was
deliberately designed to extend freedom to them all. Our
nation guarantees this freedom to all faiths by erecting a
wall of separation between church and state.
``Senator Ashcroft views this wall as one that fosters
oppression, not freedom,'' Lynn concluded. ``By taking this
position, he puts himself at odds with both the early
American statesmen who built that wall--men like Thomas
Jefferson and James Madison--and more importantly, the
decisions of the U.S. Supreme Court. For these reasons, we
respectfully ask this committee to reject John Ashcroft's
confirmation as attorney general of the United States.''
Americans United is a religious liberty watchdog group
based in Washington, D.C. Founded in 1947, the organization
represents 60,000 members and allied houses of worship in all
50 states.
Mr. HATCH. Let's go to People for the American Way. It is estimated
that People for the American Way have between $12 and $30 million given
to them, mainly by the Hollywood crowd and big business people, to do
what they do in this town, which is to distort Republican nominees'
records. This is People for the American Way. I will not read it all:

Charitable Choice, a bad choice for government and
religion.

Here is the paragraph.

An Evangelical church running a government-funded welfare
program could state that ``Catholics need not apply,'' in a
help wanted ad.

I do not recall any Democratic Senators expressing outrage about
that. I did not see one comment about the fact that the liberals have
used this language against the Charitable Choice legislation.
Whether you agree with that or whether you agree with General Pryor,
or not----
Mr. McCONNELL. Will the Senator yield for a question?
Mr. HATCH. I am happy to yield without losing my right to the floor.
Mr. McCONNELL. I ask the chairman of the committee if he is aware of
any time in which the Senate, having set a precedent, tended to unset
it lately?
Mr. HATCH. I have no doubt that we have unset precedents in this
body.
Mr. McCONNELL. My fear, I say to my friend from Utah, is that we
crossed the Rubicon on the issue of filibustering judges.
Mr. HATCH. No question about that.
Mr. McCONNELL. I can recall as recently as the last year of the
Clinton administration, the chairman of the Judiciary Committee and
others and myself voting for cloture on judges that we personally
opposed and subsequently did oppose, even though we knew there was a
chance of killing them on filibuster. I think of Paez and I think of
Berzon.
Does the chairman of the committee share my view that we may have
gone so far now that this would be the pattern forever in the Senate,
denying judges up-or-down votes because we find them unacceptably
liberal or conservative or too steeped in personal beliefs that they
are willing to express before the committee?
Mr. HATCH. I have no doubt, to answer the Senator's question, if we
continue down this pathway we are going to devolve to where people with
strongly held religious beliefs are not going to be able to serve in
this country. That is what it comes down to. I have no doubt that if we
continue to violate the Constitution by allowing filibusters against--
under our advise and consent mandate in the Constitution, we are going
to wind up with a mess on our hands that we will not be able to repair.
So we have to get out of this. I call on our colleagues on the other
side to get real here.
Mr. McCONNELL. Further, I inquire of the Senator from Utah, the
chairman of the committee, whether he thinks it will now be routine for
every nominee to be asked their personal beliefs on a whole range of
issues, personal and religious beliefs on a whole range of issues, and
be expected to answer those kinds of questions.
Mr. HATCH. I do not think we will go that far. At least while I am
chairman of the committee we are not going to do that. I did ask him
what his religion was, after all of these questions that were asked in
a very extensive hearing where religion was put squarely in issue by
the other side. I did ask him that because I wanted to establish that
this had gone too far.
I don't intend to ever ask that question again. I don't think my
colleagues will. The distinguished Senator from Vermont said he will
never ask that question, and he criticized me for doing so. But I think
it was highly justified under the circumstances, and I think we made a
pretty good case tonight that it was justified, although I am sure some
of my colleagues will take umbrage.
But let them take umbrage. People all over this country are starting
to say there is litmus test arising. Certainly there are outside groups
that are trying to smear our nominees--especially Attorney General
Pryor, Judge Kuhl, and Mr. Holmes.
Mr. McCONNELL. Mr. President, I further ask the chairman of the
committee. He may well have received--I know I did and other Members of
the Senate did--a letter today from William Donohue, Ph.D., who is
president of the Catholic League For Religious and Civil Rights. He
said, among other things, in his letter:

Some of Pryor's critics are themselves Catholic and thus
resist the contention that is being opposed because of his
religion. But they do so by falsely claiming that on the
subject of abortion, there is more than one acceptable
position for Catholics to take. They are dead wrong. Catholic
teaching on abortion is unequivocal: It is gravely sinful.
This is not a matter of dispute--it is a matter of doctrine
that all Catholics are expected to uphold. Especially public
officials.
The danger, then, is that Bill Pryor may be rejected
because of his religious convictions.

I think what is so disturbing here to many of us--I am personally not
a Catholic--is that you could adhere to the teachings of your church
and then in effect be penalized for it even though there is no evidence
that in carrying out your duties as a public official you wouldn't
follow the law.
I ask the chairman: Are we being penalized for our own personal
religious convictions in seeking public positions?
Mr. HATCH. There are people all over this country who are coming to
the conclusion that Bill Pryor is being treated that way. Personally,
if you are going to apply abortion as a litmus test, and that is his
deeply held personal belief, even though he has exhibited more than an
effort to obey the laws no matter what they are, I can see why people
arrived at that conclusion.
I see why Mr. Donohue feels that way. This is getting to be an
avalanche. The new code words for some are that, well, I don't
personally believe in abortion but I believe a woman ought to have a
right to choose.
Give me a break. That is a nice excuse. But that certainly is not
acceptable, it seems to me, to many religions, including the Catholic
faith, as has been said by these letters.
Mr. McCONNELL. Mr. President, I ask unanimous consent that this
letter to which I referred from Dr. Donohue be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Catholic League

for Religious and Civil Rights,

New York, NY, July 25, 2003.
Dear Senator: You will soon be voting on the candidacy of
Alabama Attorney General Bill Pryor for the federal appeals
court in Alabama. As president of the nation's largest
Catholic civil rights organization, I ask that you subject
him to the same standards as you would any candidate. I am
also asking that you challenge any colleague of yours who may
attempt to subject Pryor to a de facto religious test.

[[Page S10243]]

I have plainly said there are no anti-Catholics in the U.S.
Senate. But I have also said that this does not empty the
issue.
Bill Pryor's deeply held opposition to abortion as a moral
issue, as well as his deeply held opposition to the
jurisprudential reasoning as evidenced in Roe v. Wade, have
made him a lightning rod for abortion-rights advocates. In
other words, it is precisely Pryor's religious convictions
that are bring scrutinized. Given the cast of mind of some of
his critics, it makes it virtually impossible for practicing
Catholics to ascend to the federal bench.
Some of Pryor's critics are themselves Catholic and thus
resist the contention that he is being opposed because of his
religion. But they do so by falsely claiming that on the
subject of abortion, there is more than one acceptable
position for Catholics to take. They are dead wrong. Catholic
teaching on abortion is unequivocal: it is gravely sinful.
This is not a matter of dispute--it is a matter of doctrine
that all Catholics are expected to uphold. Especially public
officials.
The danger, then, is that Bill Pryor may be rejected
because of his religious convictions. This would be
outrageous and that is why I am asking you to do what you can
to prevent this from happening.
Sincerely,
William A. Donohue, Ph.D.,
President.
Mr. McCONNELL. Mr. President, I ask the chairman of the committee,
isn't the important thing whether there is demonstrable evidence that a
nominee has been unwilling to follow established law and it is my
understanding--I ask the chairman whether it is his understanding--that
Attorney General Pryor has followed the law when it was very tough to
do so as an elected official in Alabama.
I believe our friend from Alabama, the junior Senator from Alabama,
Mr. Sessions, cited a number of cases upon which Attorney General
Pryor, as an elected official and not insulated from the wishes of the
voters, took very tough positions on various issues because he was
following the law. Isn't that the fundamental question that we ought to
ask of nominees, whether to the left or to the right? Will you follow
the law? And if they have demonstrated examples where they have done
so, that would be relevant to whether or not they ought to be
confirmed.
Mr. HATCH. It certainly would. We have reached a point on the
Judiciary Committee where a person who has always had an honorable
reputation such as General Pryor is immediately told by my Democratic
colleagues that he cannot follow the law because of his deeply held
beliefs. Come on. He has more than shown that he follows the law even
though sometimes it is totally in conflict with his religious beliefs
because he is a great lawyer. He realizes that if you do not follow the
law, pretty soon we will not have any laws. The quickest way to get rid
of the Constitution is to not abide by it. Even though there are
decisions by the Supreme Court that I abhor, and that I think are bad
decisions to start with, the fact is that when it is the law, I believe
we ought to abide by it.
He has more than amply shown that he would, even under severe
criticism by his supporters--by his own Governor who appointed him, by
the Supreme Court Chief Justice who begged him to make certain
arguments, he abides by the law. Yet his assertions and his word as a
man of integrity and honor all his life are given short shrift.
Democrats are playing this phony ``gotcha politics'' game, in which
they ``investigate'' unauthenticated--and many believe, stolen
documents--and we object but participate only to keep our side
informed. After weeks of their ``investigation,'' they didn't find one
thing inconsistent with Pryor's testimony. They called almost everyone
named in these documents. I don't know if they got all of them on the
phone. But they didn't find one thing wrong. Pryor made himself
available twice, so they could ask any question they wanted to ask, but
twice, they didn't ask a single question. Then they come here and said
they haven't had the full investigation. Give me a break.
It is getting to be where it is hard for people of devout beliefs to
not be criticized if those beliefs contradict abortion rights.
Look. We have people on our side who feel very deeply about that.
Some of them--very few--wanted to filibuster. We stopped it because we
knew it would be terrible for this body to go through filibustering
nominees to the Federal judiciary.
But now Democrats are filibustering nominees. When a person of the
integrity of Bill Pryor is constantly called into question because of
deeply held beliefs, I can see why people from all over the country are
starting to ask what his deeply held beliefs are. They are religious
beliefs because he is a traditional pro-life Catholic--and God forbid
conservative--and that is, frankly, behind this in the eyes of many
people.
I don't want to attribute that to my colleagues on the committee but
I believe they are letting this happen. I call on them to help stop it.
The reason I bring up these two posters tonight is because these
liberal groups use these slogans that ``Catholics need not apply'' to
argue against Republicans for supporting Charitable Choice legislation.
When that slogan was used against Republicans, I did not hear any
outcry from my friends on the other side. I did not hear any outcry.
Specifically, Americans United for Separation of Church and State
argued against John Ashcroft's nomination for Attorney General. Their
press release stated that Ashcroft's Charitable Choice provisions allow
a government-funded program to hang a sign that says ``Catholics Need
Not Apply.''
That is ridiculous. But that is what they did. I did not hear any
screaming about that. I did not hear any of this righteous indignation
from our colleagues over here about that. We didn't dignify it; at
least I didn't.
People for the American Way, which I think has a very checkered
reputation in this town--I am getting so I don't believe anything they
do--criticized the Bush administration for supporting Charitable Choice
legislation. They said:

Charitable Choice opens the door to government approved
discrimination. . . . An evangelical church running a
government-funded welfare program could state that
``Catholics need not apply.''

I am sure some will say maybe they will do that. Maybe they will. I
don't know. But they are saying a lot of the best welfare programs in
this country, a lot of the best programs in this country--from the
taking care of people standpoint--are done by religious organizations,
including the Catholic Church.
Where was the outrage back in 2001 when the liberals were using the
slogan ``Catholics Need Not Apply'' against the Bush administration and
John Ashcroft?
My friends on the other side of the aisle were silent. I did not hear
one of them complain about that.
I met with some 50 people yesterday from all over the country who
believe we are devolving into an antireligious body because of what is
going on here.
Again, it is all coming down to abortion.
All we have asked is for Senators not to filibuster judges. We think
it is a dangerous, unconstitutional thing to do. Judicial nominees of
any President deserve an up-and-down vote, especially once they are
brought to the floor. There are all kinds of ways of stopping them
before they get to the floor, and colleagues on both sides of the aisle
understand those ways.
But I can tell you this, we can match the decency of our approach any
day of the week to what went on during the Reagan and Bush 1
administrations, and now what is going on in this administration--any
day of the week--statistically, number-wise, fairness, from a dignity
standpoint.
All we want are up-and-down votes for these nominees, especially once
they are brought to the floor. What is really bothering our friends on
the other side is, we do have a right to bring people to the floor
because we have this one-person majority. Can you imagine how much good
work we could do if we had a few more in the majority? It would not be
nearly this screaming and shouting and this bitterness that sometimes
does arise, coming primarily from outside.
I think the public has a right to know exactly where their Senators
stand on these issues. If you do not like Bill Pryor, vote against him.
If you think that his religious views are going to color his decisions
on the bench, vote against him. If I thought that, I would vote against
him.
The public needs to know, how are you going to vote on these issues?
Some of our colleagues are afraid to take on these outside groups. We
did. I did. I have been condemned by some of them, even to this day,
for having done

[[Page S10244]]

so. And I put through a lot of Clinton judges. The all-time champion
was Ronald Reagan: 382 judges in his 8 years. He had 6 years of a
Republican Senate to help him, only 2 years with Democrat opposition,
and he got 382. It was remarkable. Guess how many Clinton got, with
only 2 years of his own party in control of the Senate? In 6 years,
where I was chairman, 377--5 less than Reagan. Had it not been for some
of the holds on the other side--one Senator was not getting his, so he
stopped another from getting his--I think Bill Clinton would have been
the all-time confirmation champion, with 6 years of a Republican
Senate. We treated him fairly. Now, you can always find something to
complain about on both sides, but he was treated fairly under the
circumstances. And I know it, and I know he knows it.
These people deserve an up-and-down vote, at least once they come to
the floor. Justice delayed is justice denied. There are many of these
cases, among the litany of people the Democrats have indicated they are
going to filibuster--it is not just two. Pryor looks like he is going
to be filibustered. Kuhl looks like she is going to be filibustered.
Holmes looks like he is going to be filibustered. We have talked about
Pickering being filibustered. You can go down through some others as
well--Boyle from North Carolina, et cetera.
Our courts cannot work if we don't have judges to run them. What is
really bothering some of our colleagues on the other side is that in
relation to the American Bar Association, their gold standard during
all my 6 years as chairman of the Judiciary Committee during the
Clinton years has suddenly not been a gold standard but a tin standard
to them, because people like Miguel Estrada, with the unanimously well-
qualified highest rating of the American Bar Association, are stopped.
For what reason? They do not even have a good reason.

The first Hispanic ever nominated to the Circuit Court of Appeals for
the District of Columbia, and not even a valid reason--at least I have
not heard one yet, and I have heard everything they have said.
Priscilla Owen, you can't find a better woman. Priscilla Owen became
a top-flight partner in one of the major law firms, broke through the
glass ceiling for women, has been a mentor for women, is unanimously
well qualified, and a justice on the Texas Supreme Court. She has all
kinds of Democrat support from Democrat co-justices right on through
the State--the people who know her the best. And she is being
filibustered.
Bill Pryor is as good a man as I have seen come before the committee;
yes, a person with very deeply held views. He might be filibustered.
Judicial nominees' qualifications should matter most. And a person's
judicial qualifications ought to be the sole criteria by which we judge
them. You cannot find better people than the ones I have been
mentioning. I don't understand it. I don't understand why the other
side is doing this. But they are doing it. And I think they are hurting
this process tremendously.
All I want--and all any reasonable person should want--and all the
public wants--is to have an up-and-down vote. Let these people be voted
upon. If they are defeated, I can live with that. But if they are not
defeated, they should be able to serve without having their reputation
smeared, which is what these outside groups are doing. I don't think
outside groups of the left or the right should be doing that. And they
are distorting this process like I have never seen it distorted before.
Now, Senator Feinstein was not here when I showed that the left used
this slogan ``Catholics Need not apply.'' I don't think it is a good
idea, whether these ``Catholics need not apply'' signs or ads come from
the left or from the right. And I would prefer them to be stopped.
I don't like my colleague from Vermont thinking that I think he has
even an ounce of religious bigotry. I do not. He needs to know that.
But he can't just slide off and not recognize that this is where we are
being taken by some of the attitudes and some of the approaches that
are going on in the Senate Judiciary Committee--at least that is what
the people outside think, religious people.
I have to tell you something, some of the greatest judges in this
country are Catholics--and from every other religion. And some of the
greatest ones have deeply held beliefs. But they are honorable, decent,
honest people, just like Bill Pryor.
Now, look, what really has offended me and got me going here today--
and I knew we were not going to go any further on energy tonight
because the Democrats brought this up. We have an hour scheduled for
the debate early in the morning tomorrow for a cloture vote. They don't
want this cloture vote. Why not? It takes 15 minutes. And they are
trying to say that we are tossing energy over the hill. They brought it
up. And I am not going to let them get away with it anymore.
I care a lot for my colleagues on the other side. There is not one I
do not like. That is not the usual BS around here. I do like my
colleagues, and they know it. I don't feel good pointing out to them
that what they are doing is dangerous for this process, and that people
all over this land are starting to get some wrong ideas--maybe right
ideas. I think these church leaders are not too far off. In fact, they
may very well be right. They took the time to let us know how they
feel.
But to come out here tonight and start this mess, and make these
points, and then say that we are not willing to get the Energy bill
done--come on. We have been doing a slow-walk around here for weeks now
on the Energy bill. My colleagues on the other side know that Senator
Domenici has had some health problems and that it has been very
difficult for him, but he is a gutsy, strong Senator, one of the
greatest ones who has ever sat here. And he is never going to let you
know that he has been hurting. But they know.
We can do this bill by the end of this week, and we can still have
our votes on cloture, which need to be done because the Senate is
capable of doing multiple things. If we were not, we would not have
lasted for over 200 years. And we can do those trade bills, too, if we
just have a modicum of cooperation from the other side. But, no, there
is a slow-walk here. And some on our side--in fact, it is a growing
number--are starting to believe that slow-walk is to try to make the
Senate look bad. You can't make it look bad because we have had a lot
of legislation go through this year. And we are going to keep plugging
away until we get more that this country needs. But it sure is a chore
every step of the way.
I don't want to hear these phony arguments that we can't have 15
minutes for a cloture vote, or even an hour debate beforehand. We can
start at any time in the morning.
Most people do not even get moving around here until 10 o'clock. We
can do that without interfering with the energy debate. Senator
Domenici was willing to be here all night long, if he had to, to take
amendments and move this along. I think we Republicans were ready to be
here for as long as it took to support him and others on the Democrat
side who believe we need an Energy bill.
But to come out here and make these points against Bill Pryor that
are not only false but demeaning to this body is wrong.
I am going to yield the floor. I know my colleague would like to
speak. I am tired of hearing these arguments how holy some on the other
side are. But I tell you this, there are people all over this land who
are starting to think this system is not fair to people of belief, to
people who have deeply held beliefs. I want you to know I am one of
them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I thank so much the distinguished
chairman of the Judiciary Committee. He has been a consistent defender
of an independent judiciary. He takes those issues exceedingly
seriously. He has defended them when there was a Democratic President
and he was Chairman of the majority-Republican Judiciary Committee. He
defended the President's legitimate prerogatives in nominations. He has
been consistent on that and everybody knows it. There is no basis to
criticize him.
Bill Pryor is a friend of mine. He is one of the finest, most decent
people I have ever known. There is not a Member of this body or a
member of any of these outside groups that has any more integrity, any
more decency, any more

[[Page S10245]]

character than Bill Pryor. He is a sterling individual, an honest man.
He tells the truth.
When asked, ``if you disagree with a law or a court opinion that goes
against your values, will you enforce it?'', he said: ``Senator, you
can take it to the bank.'' Not only did he say that, as so many of our
nominees have and as we have accepted, he has demonstrated it time and
time again as Attorney General of Alabama.
It is really extraordinary to me. I don't think there is a politician
in America who has so consistently taken very difficult positions in a
political environment--positions most people would say a politician was
crazy to take--than Bill Pryor. He did it, and there is only one
principle guiding him. What is that principle? It was required by the
law. He is a man of the law.
Yes, he is a Christian gentleman. When he makes a statement, part of
his religion teaches that it ought to be an honest statement. So when
he said, ``if the courts rule on something I don't agree with, if it my
contradicts my views on abortion, I will follow the law,'' you can take
it to the bank. That is the kind of man Bill Pryor is.

There has been an awful lot of railing about this ad by the Committee
for Justice. It has a courthouse chambers with a little sign on it, and
the sign says ``Catholics need not apply.'' Isn't this a legitimate
commentary on how people feel about what is happening here? You can
agree or disagree, and say it is not a really an accurate statement if
you want to. I say it is legitimate commentary.
My colleagues went into a conniption fit about it. The ranking member
twice, in two separate hearings, called this ad despicable. Let me read
for you what it says.

As Alabama Attorney General, Bill Pryor regularly upheld
the law even when it was at odds with his personal beliefs.
Raised a Catholic, those personal beliefs are shared by
Mainers all across the Pine Tree State. But some in the U.S.
Senate are attacking Bill Pryor for having ``deeply held''
Catholic beliefs to prevent him from becoming a Federal
judge. Don't they know the Constitution prohibits religious
tests for public office? Bill Pryor is a loving father, a
devout Catholic, and an elected Attorney General who
understands the law. The job of a judge is to uphold the law,
not legislate from the bench. It's time for his political
opponents to put his religion aside and give him an up-or-
down vote. It is the right thing to do. Thanks Senators Snowe
and Collins for making sure that the Senate stops playing
politics with religion.

I think that is a legitimate ad. It represents the view of a lot of
Americans. There is nothing despicable about that. But I will tell you
what is despicable. It is despicable to lie and distort and
misrepresent this fine man's reputation, to impugn his integrity, to
suggest he did one thing wrong when he and a group of attorneys general
raised money for the Republican Attorneys General Association. They are
candidates for office. They raise money all the time. There is nothing
wrong with that. But the Democrats insisted there be an investigation,
even though they had the records for many weeks.
Parenthetically, let me just talk about how they got those records.
The records came to Senator Kennedy, not to the chairman of the
committee, myself, or the senior Senator from Alabama. Senator Kennedy
had them for some time before anyone else knew they existed. The lady
who gave them to him had been an associate of a certain Lannie Young in
Alabama, who recently pled guilty to a bribery scheme investigated by
the United States Attorney's Office and Attorney General Bill Pryor. So
she leaks those documents to Senator Kennedy, and then, at his staff's
suggestion, to Senator Leahy. And then the Democrats want to have an
investigation. So the chairman's staff says, OK, let's get the attorney
general on the phone. You can interview him, ask him any questions you
want to ask him about this effort to raise funds for the committee.
The bipartisan investigative staff had the phone call. The chairman's
staff asked many detailed questions, and Attorney General Pryor's
answers corroborated his testimony before the committee during his
hearing and in written questions. The Democrats refused to ask Attorney
General Pryor any questions. Why? Because they wanted to stall his vote
in committee. It was already the fourth time his hearing had been set.
The time had come up for a vote to be cast on his nomination in
committee. The Democrats didn't want a vote. So they dragged it out,
partly by invoking a rarely used two-hour rule, cut off debate, and
obstructed a vote.

The chairman then said we were going to continue the investigation
again that night. He gave the Democrats another chance to call Attorney
General Pryor on the phone. They again turned down this opportunity. So
the investigation dragged on for over another week. They were given yet
another chance to get Attorney General Pryor on the phone and ask him
any questions they had about this alleged issue. Instead, they called
20 of the alleged contributors on the list. They called employees of
the Republican Attorneys General Association. Not one contradiction was
found. Nothing unethical was found. Yet the Democrats continue to sully
his reputation by implying that the investigation proved that Pryor
misled the Committee. This is wrong, because not one person in this
body has the integrity of Bill Pryor, I would say. This is a fine,
decent man who has lived his life doing the right thing. I feel
strongly about that. I won't back down.
I will tell you some other things that are despicable in the attack
on Bill Pryor. One of our Senators just said recently on this floor,
with regard to Bill Pryor's participation in a certain Supreme Court
case: He used his power as attorney general to obstruct the enforcement
of the Violence Against Women Act in Alabama.
Now that is the kind of thing People for the American Way do. That is
the kind of attack the Alliance for Justice puts out. I am sure some
staff person put that language together for the Senator, and perhaps
she made her speech and didn't really understand what she was saying.
That is a false and unfair statement. Let me tell you what he argued
with respect to the Violence Against Women Act. He participated as
amicus in an appeal to the Supreme Court questioning whether the part
of that act creating a federal civil remedy for a purely intrastate act
violated the Commerce Clause. Pryor argued his position to the Supreme
Court, and the Supreme Court agreed with him.
This falsehood about Bill Pryor's indifference to violence against
women is also ironic, because he has a tremendous reputation in the
State of Alabama for standing up for the victims of domestic violence.
Kathryn Coumanis is one of the leaders in the State in the movement to
protect women against domestic violence. She heads the Penelope House.
She has written on Bill Pryor's behalf and noted that the women's
groups in the State involved in the issue of violence against women put
Bill Pryor in their Hall of Fame. Yet we have people on this floor and
we have outside groups saying Bill Pryor does not care about violence
against women. That is flat-out wrong.
We have seen some outside groups attack Bill Pryor, saying that he
was against the disabled. These groups should have been ashamed of
themselves. Who are they? The ACLU, the People for the American Way,
the National Abortion Rights Action League, Alliance For Justice. They
work together and they have a tremendous amount of money. They created
this supposed issue, sent out information to newspaper editors and made
these allegations that Bill Pryor had gutted the Americans With
Disabilities Act, and he didn't care about people with disabilities.
They said so directly.
But what did he really do? He argued in the Garrett case against the
constitutionality of one small part of the Americans With Disabilities
Act that said a State employee could sue the State of Alabama, or any
other State, for money damages in federal court for violations of the
Act. It was a suit against the University of Alabama, a State
institution; and the Attorney General of Alabama, charged with the
responsibility of defending the State, said this in his brief: I
believe in the Disabilities Act. I believe people with disabilities
should be treated fairly. The State of Alabama believes that under the
Federal statute this person can get his or her job back. The Federal
court can issue an injunction against the State of Alabama to remedy a
violation. But the Congress could not allow this State employee to sue
the State for money damages because, under the Eleventh Amendment
principle of sovereign immunity, a state

[[Page S10246]]

cannot be sued for money damages in federal court. This is because the
power to sue is the power to destroy. A State always controls and
limits the power of a suit against itself.
Bill Pryor took this argument to the Supreme Court. What did the
Supreme Court do? The Supreme Court ruled Attorney General Pryor was
correct. And in any event, this affected only 4 percent of all the
cases that might be brought, because only 4 percent of the employees in
America work for States. Most States have disability rights
protections, anyway. They don't need to file under the Federal Act.
This is why it is wrong and despicable and dishonest to say Bill
Pryor lacks sensitivity for the disabled simply because he legitimately
defended the State of Alabama and won in the Supreme Court. This attack
should not have been made.
Some say Bill Pryor is an activist. I would say he is an active
attorney general. He is constantly working to preserve the rule of law
and protect the legitimate interests of the people of Alabama. That is
what he is paid to do. He is absolutely not an activist in the way
Chairman Orrin Hatch defines it. As Chairman Hatch defines it, an
activist is a nominee for the bench who will not restrain himself or
herself to the law, but in fact seeks to carry out and further their
personal ideological agenda by twisting the meaning of words in
statutes and the Constitution, and to otherwise act in a way that
allows their personal views to dominate their legal requirements. An
activist who seeks to be on the bench is someone who ought to be
scrutinized carefully.

Bill Pryor is no activist. In fact, he is absolutely committed to the
rule of law. His whole life and whole political philosophy has been
built on the fact that judges should be true to the law whether they
agree with it or not. That is the whole purpose of the rule of law.
That is why this Nation is so wonderful, why we have so much freedom.
We follow the law to an extraordinary degree. A lot of countries that
have great potential never reach it because they don't have a rule of
law that ensures predictability and justice.
As attorney general, Bill Pryor had to be an advocate. He proved to
be a great one. As attorney general, he consistently has followed the
law courageously, even when he knew he might face complaints from
friends and allies. Members of the Senate should study his testimony
carefully and evaluate his real record, not the trumped-up charges, not
the bogus attack sheets being produced by outisde groups, and not
mischaracterizations by these groups, some of which themselves have
very out-of-the-mainstream positions.
Let me say, parenthetically, that a number of these groups have
extreme views on the separation of church and State. Some of these
groups believe there can be no drug laws, that we ought to legalize
drugs. Some believe there can be no laws against pornography. The ACLU
opposes laws against child pornography. Who is out of the mainstream
here?
And let me ask you this: Why would leading African-American Democrats
like our Congressman Artur Davis, a Harvard graduate and a lawyer
himself, former U.S. Attorney; why would Representative Joe Reed,
chairman of the Alabama Democratic Conference, a member of the
Democratic National Committee, one of the most powerful political
figures in Alabama for 30 years; why would Representative Alvin Holmes,
Representative Holmes, a lieutenant with Dr. Martin Luther King, who
has been beaten for his commitment to civil rights, all speak up for
him? Why does the former Democratic Governor of Alabama speak so highly
of him? Why does the Speaker of the Alabama House speak so admiringly
of him?
All these people support him because he is not as Beltway attack
groups have caricatured him. He has been a champion of liberty and of
civil rights. Much has been changed in Alabama over the years. We have
the highest number of elected African-American officeholders in the
United States. On the day we had General Pryor's nomination hearing, it
marked the anniversary of a sad day in which Governor Wallace stood in
a schoolhouse door. But you must know that Bill Pryor was not part of
that. He was a mere child at that time. Secondly, his parents were John
F. Kennedy Catholic Democrats. I suspect this hearing might change some
of their views. When he gave his inaugural speech after winning
election as attorney general, with 59 percent of the votes, he opened
that speech with these very telling words:

Equal under the law today; equal under the law tomorrow;
equal under the law forever.

Not segregation today, tomorrow, and forever, but equality. That is
how he led off his speech, and that is the kind of man Bill Pryor is.
Those words were a fitting response 40 years after a promise of another
kind.
Bill Pryor is one of the good guys. He does the right thing. He
frequently has refused pleas from his Republican friends when he
thought the law didn't support their position. For example, those
friends rightly believed the legislative district lines had been
gerrymandered in the State, making it very difficult for Republicans to
win legislative seats.
In fact, although we had in Alabama two Republican Senators, five
Republican Congressmen, and a Republican Governor, only a third of the
state legislature was Republican. Some Republicans felt that this was a
redistricting problem. So they filed a voting rights suit arguing that
the majority-minority legislative districts were improper. They asked
for support from the Republican Attorney General. He would not take
their side. He courageously led the case, as it turned out, for the
African-American Democratic position.
He lost before the three-judge district court--and backed up by an
amicus brief from the NAACP--won in the U.S. Supreme Court. His
argument was plain and simple. He said the plaintiffs did not have
standing to file a lawsuit. Whether the lawsuit had been meritorious or
not, it was not a legitimate lawsuit because they did not have
standing. Attorney General Pryor took it to the Supreme Court, and the
Supreme Court ruled with him. Some of my friends and some of Bill's
friends are still mad about that situation, but he believed that was
the right thing to do under the law, and he made that call as the
attorney general for the State of Alabama.
He had taken an oath to defend the State of Alabama. These
gerrymandered districts were the laws of the State of Alabama, endorsed
by the legislature. So he defended the districts even when it went
against the interest of his political allies.
That is why Joe Reed and Alvin Holmes speak highly of Bill Pryor.
They have seen him in action.
On one of the church-and-state issues that came up not long after he
was appointed Attorney General by our former Governor, the Governor had
a firm view about separation of church and State. Basically, he did not
think there was much separation. He read the Constitution pretty
plainly. The First Amendment says Congress shall make no law respecting
the establishment of a religion, and the Governor thought that meant
the United States Congress, not the State of Alabama. He did not adhere
to the view that the 14th amendment incorporates the First and applies
it to the States.
Then-Governor James said: What is wrong with coaches leading the
players in prayer? He wanted Bill Pryor to file a lawsuit to vindicate
him. Shortly after having been appointed Attorney General--at a very
intense and emotional time in the State, with the Governor of the State
speaking up for prayer in schools--Bill Pryor had to make a tough
decision. He had to review the law carefully.
What did he do? He filed a respectable brief in court. He would not
file the brief the Governor wanted, so the Governor got his own lawyer
and he also filed a brief. As I know as a former Attorney General of
Alabama, only the Attorney General is legally allowed to speak for the
State in court. So Bill Pryor, as Attorney General, filed a brief
saying that the Governor--who had just appointed him--did not speak for
the State of Alabama.
Opponents said that Bill Pryor somehow is a tool of the chief justice
of the Alabama Supreme Court, Roy Moore, who has deep convictions about
how the Constitution and the laws ought to be applied with regard to
separation of church and State, and who put in a monument in the court
recently that had the Ten Commandments on it. The judge did not think
anything was wrong with that. He met with the Attorney General, and
they discussed legal actions against him to remove

[[Page S10247]]

the monument. They did not reach an accord. The attorney general did
not agree with the Chief Justice on his views of what the law was. So
eventually, the Chief Justice had to hire his own lawyer and file his
own brief, and Attorney General Pryor filed a more limited brief
pointing out that if you go to the Supreme Court of the United States,
there are several different depictions of the Ten Commandments on the
walls of the U.S. Supreme Court. He basically said: What is good for
the U.S. Supreme Court ought to be good for the Alabama Supreme Court.

Opponents say Bill Pryor is extreme on religious issues. That is not
true. For example, I mentioned earlier how he stood up and did what was
right with regard to the pressure from the Governor on school prayer.
After that decision, there was much confusion in the State. School
boards did not know what to do; teachers were leading prayer; others
said you cannot do that. What was the law?
To answer that question, Attorney General Pryor wrote guidelines for
school systems in Alabama advising them on what they could legally do
as teachers, principals, and coaches, and what they could not do, and
what children could do and what they could not do.
The Atlanta Journal Constitution wrote an editorial praising him for
stepping up in a tough, emotional time and providing good leadership.
And, indeed, the Clinton Administration basically adopted verbatim Bill
Pryor's guidelines, and sent them around the country to other schools.
This idea that he is some sort of extremist is absolutely false. This
is a courageous lawyer who does the right thing day after day, time
after time to a degree I have never seen before by any politician in my
life.
On abortion, they say he has deeply held beliefs about abortion; he
cannot be trusted to be a judge. The distinguished Senator from
Kentucky a few moments ago hit it exactly correctly. When a nominee has
taken a view that they believe abortion is wrong, then it is perfectly
proper for the Senate to inquire about that. What should the inquiry
be? Senators should not say: Mr. Pryor, we want you to grovel down here
on the floor; we want you to renounce your views about abortion; we
want you to say, ``I don't believe that anymore,'' as a price for being
confirmed--that is absolutely wrong.
What should Senators say? They should say: Mr. Pryor, you have
expressed your view that abortion is bad, that you do not think Roe v.
Wade was rightly decided; but will you follow it? Then see what he
says. Senators do not have to accept what he says; they can inquire
further. To those inquiries, Bill Pryor said ``Of course, I will follow
the law, Senator. You can take it to the bank.'' What is significant is
that Bill Pryor has a record showing that he will live up to that
answer.
As far as I can tell, there have been only two instances in his
public life in which he has dealt with abortion. The first had to do
with Alabama's partial-birth abortion statute, that severely restricted
partial-birth abortion. Partial-birth abortion is a very horrible
procedure. Overwhelmingly, Americans reject it. The American Medical
Association said it is never justified as a medical procedure. And
Alabama passed legislation to virtually eliminate it.
As Attorney General, he superintended the State's district attorneys
who enforced this law. He sent them a directive in 1997 stating that
parts of the partial-birth abortion bill were unconstitutional and
could not be enforced. Isn't that proof that he will follow the law
even if he disagrees with it?
The other example involving abortion was when Attorney General Pryor
issued stern warning that those who threatened violence against
abortion clinics, or against those who sought to exercise the
constitutional right to abortion at those clinics, would be fully
prosecuted.
So outside groups attack him on his deeply held beliefs, even deeply
held religious beliefs, and they suggest that somehow he is an
extremist because he personally thinks that abortion is a taking of
innocent human life.
Bill is a thoughtful person. He is not some automaton for any church
or any person. He thinks about these issues carefully. He has shared
his views about it. He believes that the life that is in the womb has
all the characteristics of what that life will be as an adult. There is
no doubt that it is going to become a human being. He believes that we
ought not to withdraw the law's protection from that life. That is his
view.
But the Supreme Court has not bought it. In Roe v. Wade and Planned
Parenthood v. Casey they held differently. Bill Pryor said: I
understand that. I will follow the Supreme Court precedents.
How do we know he will? Because he did it even with respect to the
partial-birth abortion statute in Alabama. So I do not know what more a
person can do to prove his fidelity to the rule of law.
Bill has gained great support in the State. He is a man who is
respected across party lines, across racial lines. Representative Alvin
Holmes wrote this powerful letter on his behalf, and he told the story
about Alabama's old constitutional provision that prohibited
interracial marriages. Of course, that had been struck down some time
ago by the United States Supreme Court. It was unconstitutional, but it
remained in the constitution.
Alvin Holmes, as a lieutenant for Dr. Martin Luther King, and still a
vibrant battler for civil rights in Alabama, said it ought to come out
of the constitution. Attorney General Bill Pryor, as Alvin Holmes said,
was the only white politician in the State, Democrat or Republican, who
supported him. They got it out of the legislature, put it on the
ballot, and the people of Alabama eliminated it from our constitution.
Bill Pryor campaigned for that elimination throughout the State because
he thought it was wrong that our constitution would have those words
still in it.
This is a man of quite extraordinary character, a man of great skill
and ability, who has taken cases to the Supreme Court and won them to
an extraordinary degree.
So I submit there is nothing wrong with the ad that that group put
out to defend Bill Pryor. It is basically an honest evaluation of the
situation. Somebody might disagree with it, but it is honest.
In contrast, many of the attacks on Bill Pryor have not been honest.
Outside groups have been unfair and have deliberately twisted his
record. What they have done is not right.
Some in this chamber say we need collegiality. They say Republicans
should renounce this outside ad about ``Catholics need not apply.'' I
would say this to my friends: Let's see you renounce some of these
ridiculous, obscene, despicable misrepresentations of Bill Pryor's
record and his character. I would like to see that.
Yes, we do have a problem with collegiality, but I do not think it is
the result of Chairman Hatch's leadership. When he was Chairman of the
Committee, we moved 377 Clinton nominees. Only one was voted down. When
he was Chairman of the Committee, not one time did we vote down a
Clinton nominee on a party-line vote. During that short time, a year
and a half or so, that the Democrats had a majority in the Senate
Judiciary Committee, they voted down in committee, on a party-line
vote, two President Bush nominees.

In May, President Bush nominated 11 judges for the court of appeals.
He renominated one Democrat who had been nominated by President
Clinton, but not confirmed, and two Democrats overall. The Democratic
Judiciary Committee promptly moved the 2 Democrats and confirmed them.
Almost 2 years later, several of the remaining nine had not even had a
hearing in committee. This was an unprecedented slowdown of the
confirmation process.
The Democrats met and decided deliberately and consciously to change
the ground rules for confirmation. There is no doubt about that. Who is
changing the ground rules? I submit it is the Democratic members of the
Judiciary Committee, by some of their tactics. They started an
effective filibuster in the committee, creating a situation in which 9
out of the 19 members of the committee could withhold a vote by relying
on a misinterpretation of Rule IV. I have never heard of that.
The chairman properly ruled under Rule IV that the chairman has the
prerogative to bring a matter up for a vote.
Their citation of rule IV ignores what it says the purpose of that
rule.

[[Page S10248]]

The first sentence says to bring a matter up for a vote and to deal
with a recalcitrant chairman who will not allow a matter to be voted
on, if you get one member of the other party and a majority vote, then
you can bring a matter up for a vote even if the chairman does not
agree. But the rule does not give a group a right to filibuster and
keep a vote from occurring, which is what they wanted to do.
We have had two open, notorious and unprecedented filibusters on the
floor against superb circuit court nominees, Miguel Estrada and
Priscilla Owen. Both received the highest rating by ABA, and both have
extraordinary records. In the history of this country, we have never
had filibusters of circuit and district judges, but the Democrats have
started two now because they decided to change the ground rules.
Now we have these Members come down on the Senate floor and act all
upset that somehow collegiality is being upset here. They do not know
why the chairman has determined to move nominations forward and not let
them be obstructed and delayed. I call on the Democratic leader,
Senator Daschle who speaks for this party. There would not be a
filibuster of these nominations if he did not approve it. He needs to
remember the history of this body. It is a mistake for him to lead the
Democrats into an unprecedented period in which we filibuster
Presidential nominees for the federal courts.
I firmly believe a fair reading of the Constitution is that
nominations for judgeships should be confirmed based on a majority
vote. Any fair reading of the Constitution will show that. That is why
we have never filibustered in the history of the country, but the
Democrats have now created what in effect is a supermajority
requirement to block the right of nominees to an up-or-down vote.
There are many more things I could say about Bill Pryor. But I will
not do that tonight. I appreciate the indulgences of my colleagues and
the staff. This battle to allow people to have honest personal views,
so long as those views do not influence their official interpretations
of existing law, is an important battle for America. I intend to be a
part of it and a lot of others do, too. It is not going away. We are
not backing down.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, to those of us who have been given this
great honor to serve in the Senate, there is a moment when we are asked
to take the oath of office. In taking that oath of office, we swear to
uphold one document. That document, of course, is the Constitution of
the United States of America.
We are not asked our religion, nor our beliefs in our religion. We
are only asked if we will take an oath to God that we will uphold this
Constitution. All of us take it very seriously and all of us take the
wording of this Constitution very seriously because within this small
document are words that have endured for more than two centuries. There
was wisdom in that Constitutional Convention which America has relied
on ever since.

Sometimes people say, times have changed. And we do amend the
Constitution from time to time. By and large the principles that guided
those men who wrote this Constitution have guided this Nation to
greatness. I am honored to be a small part of this Nation's history and
to serve in the Senate.
I looked to this Constitution for guidance for this debate tonight,
and I find that guidance in Article 6 of the Constitution. Let me read
a few words from that book.

. . . no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United
States.

Most of the men who wrote this Constitution were religious people.
They had seen the abuse of religion. They had seen leaders in other
countries using religion for political purposes and against other
people. They came to this land and said, it will be different in
America. We are going to protect your right to believe. We are not
going to establish a government church and we will say in our
Constitution that no religious test will ever be required of a person
seeking a nomination for public office in our land.
Those are very absolute and clear words. I am a Catholic, born and
raised. My mother and father were Catholics. My children have been
raised in the Catholic faith. In my lifetime, I have seen some amazing
things happen. In 1960, I was about 15 or 16 years old. There was a
Presidential race with a candidate by the name of John Fitzgerald
Kennedy of Massachusetts. That may be the first Presidential election I
followed closely. I remember watching the Los Angeles convention on my
black-and-white television at home in East St. Louis. I took a special
interest because I had a stake. The John Fitzgerald Kennedy candidacy
was the first opportunity since Alfred Smith for the election of a
Catholic to be President of the United States. We do not think twice
about that now, but in 1960 it was a big deal. And a big problem for
John Kennedy. So much so that he feared he might lose the election over
that issue.
He did something that was historic and I guess unprecedented. He went
to Texas and addressed a Baptist convention to explain his view of the
relation of church and State because there were real concerns. Many
people felt that those who were believers of the Catholic church were
so connected and so committed to the teachings of the church and to the
leader of the church, the Pope in Rome, that they could not make
objective decisions on behalf of the United States; they would be
clouded in their judgment because of the demands of their faith.
John Kennedy, a Catholic, went to Texas to a Baptist convention to
tell those gathered that his first allegiance as President was to the
United States and not to any religion. He said: I believe in America
where the separation of church and State is absolute.
Many people think that statement and that visit turned the election
for John Kennedy, an election which he won by just a very small margin.
It dispelled the fears and concerns of many people across the country
that a Catholic would be first loyal to Rome and then loyal to the
United States.
It is an interesting thing to reflect on the view of Catholics in
public life in 1960 and the debate which is taking place tonight. The
issue has come full circle. Now there are those who argue that because
a nominee comes before the Senate and professes to be a Catholic that
we cannot ask that nominee questions about his political beliefs. There
are many religious beliefs that are also political beliefs. There are
some religious beliefs that are not. You can be an adherent to the
Jewish religion, keep kosher, and I cannot imagine how that becomes a
political issue. What is the purpose of asking a question about that?
But whether you are Jewish, Catholic, Protestant, or Muslim, it is
appropriate to ask any nominee for a judicial position, Where do you
stand on the death penalty? That is a political issue. It is a social
issue. And yes, it is also a religious issue.

Some have argued tonight if a person comes before the Senate with
strong religious convictions that somehow we are disqualified from
asking questions about political issues. I see it much differently. I
think the Constitution makes it very clear we should never ask a person
their religious affiliation. Article 6 of the Constitution says that is
not a qualification for public office.
So what business do we have asking that question? But to say that
because a person's political beliefs also happen to be their religious
beliefs, that for some reason we cannot ask questions about them, goes
entirely too far.
Consider a so-called church in my State, the World Church of the
Creator in Pekin, IL. A deranged individual named Matt Hale--who could
not be approved by the committee on character and fitness after he had
passed law school and therefore was never licensed to practice law--
decided to create a church and an Internet Web site in the name of that
church, the World Church of the Creator, and started peddling the most
venomous beliefs imaginable--bigoted, hateful, racist, anti-Semitic
beliefs in the name of religion. This church and its so-called
teachings drew some demented followers. It culminated one day when one
of those followers went on a shooting spree, killing a basketball coach
of Northwestern University, Ricky Birdsong, and then driving over to
the University of Indiana and gunning down an Asian student, and was
finally apprehended.

[[Page S10249]]

When Matt Hale was asked about the activities of this individual, he
said, that is just our religion. Their religion.
If someone who comes before us with unusual beliefs and political
issues says, stop, you cannot ask me about those beliefs because they
are my deeply held personal religious convictions, are we then
disqualified? If we are, imagine where that can lead.
In this case we have an individual, William Pryor, Attorney General
of Alabama, who is a Catholic. The reason I know that is the chairman
of the Senate Judiciary Committee, Orrin Hatch, asked him. That is the
first time I can recall in the 4\1/2\ years I have served on this
committee that it has ever been asked of any nominee. Tonight Senator
Hatch said he would never do it again. I am glad to hear him say that.
I hope he never does that again and I hope no committee chairman of any
committee ever asks any nominee for office their religion. The
Constitution makes it clear we should not. But the exception was made
by Senator Hatch and he asked Mr. Pryor his religion.
That triggered this ad campaign which we have discussed tonight and
this heated debate which many have followed in the Senate. We have had
Members come to the Senate, one who is a Catholic, saying, This is what
good Catholics believe.
I guess I was raised in a little different branch of the Catholic
church, maybe a branch that believes there ought to be a little more
humility in religious belief. I don't like to stand in judgment of my
peers as to whether they are good people or not; let their lives speak
for themselves. And I certainly would never stand in judgment of
someone's adherence to a certain religious belief. That is personal, as
far as I am concerned. But not personal to some of my colleagues.
They come to the floor and make pronouncements about who is a good
religious person and who is not. I am not comfortable with that. In
fact, I am a little bit uncomfortable discussing this issue of religion
in the Senate, but I have no choice. It has been brought before us.
What I believe is this: Within the Catholic church there are many
differences of opinion, even within the church members who serve in the
Congress. I know of one or two who I think are really close to adhering
to all of the church's beliefs in the way that they vote, but only one
or two, because although those who come to the floor want to argue to
you that the Catholic Church is only about one issue, abortion, there
are many of us who believe it is about a lot of issues.

It is about the death penalty--the death penalty, where the church
has been fairly clear in its position. Again, I am troubled that I
would even read this and put it into the Congressional Record, but I
have no choice, based on what has been said over the last 3 hours. This
is a statement by Pope John Paul II, St. Louis, MO, January 22, 1999:

The new evangelization calls for followers of Christ who
are unconditionally pro-life, who will proclaim, celebrate,
and serve the Gospel of life in every situation. A sign of
hope is the increasing recognition that the dignity of human
life must never be taken away, even in the case of someone
who has done great evil. Modern society has the means of
protecting itself without definitively denying criminals the
chance to reform. I renew the appeal I made most recently at
Christmas for a consensus to end the death penalty, which is
both cruel and unnecessary.

The words of Pope John Paul II. You didn't hear much reference to the
Catholic Church's position on the death penalty tonight by those who
were saying that William Pryor is being discriminated against because
of his Catholic beliefs. Perhaps it is because Mr. Pryor not only
supports capital punishment, he fought State legislation in Alabama
which sought to replace the electric chair with lethal injection.
I am not going to stand in judgment as to whether or not he is a good
Catholic. That is not my place. But I bring this issue before my
colleagues so they can understand that the Catholic Church is about
more than one issue. There are those who hold beliefs which may or may
not agree with all the teachings of that church, and that is within
their conscience and their right to do. It is not mine to judge.
But for us to be told repeatedly by the other side of the aisle that
to oppose William Pryor is to be against him because he is Catholic is
just plain wrong, and I resent it. I resent it because, frankly, there
are many reasons to oppose his nomination--because of his political
beliefs.
Oh, yes, some relate to his religion and some don't. But what we are
told in the Constitution is that distinction makes no difference;
whether they are religious or not, stick to political beliefs. And I
believe my colleagues have really tried to do that on the committee.
Let me also say I was disappointed that the Senator from
Pennsylvania, Mr. Santorum, earlier quoted, I believe out of context,
the statement made by Senator Feinstein of California. It was unfair to
her because she had left the floor and he characterized some of her
remarks in ways that I don't believe she intended. To make certain that
the record is clear, I asked her staff to provide me with a copy of the
speech which she gave, and I would like to read an excerpt of that
speech given on the floor this evening by Senator Feinstein to clarify
and make certain the Senate understands that the quote which was
referred to earlier by the Senator from Pennsylvania was inaccurate.
I quote what Senator Feinstein said:

Each time the Democrats oppose a nominee, we are accused of
some sort of bias unrelated to the merits. With Miguel
Estrada, we were accused of being anti-Hispanic. With
Priscilla Owen, anti-woman. With Charles Pickering, anti-
Baptist. And now, with William Pryor, anti-Catholic.
These charges have been described by some as
``scurrilous,'' and I agree. To describe Democrats as anti-
Hispanic after the many Hispanic Clinton nominees that were
stopped in their tracks by a Republican majority is
disingenuous at best.
To call us anti-woman, well, [as Senator Feinstein said] I
don't have to tell you how bizarre it is for me to be called
anti-woman.
And to say we have set a religious litmus test is equally
false.
Many of us have concerns about nominees sent to the Senate
who feel so very strongly about certain political beliefs,
and who make intemperate statements about those beliefs that
we raise questions about whether those nominees can be truly
impartial.
And it is true that abortion rights are often at the center
of those questions. As a result, accusations have been
leveled that anytime reproductive choice becomes an issue, it
acts as a litmus test against those whose religion causes
them to be anti-choice.
But pro-choice Democrats have voted for many nominees who
are anti-choice and who believe that abortion should be
illegal--some of whom may have even been Catholic. I don't
know, because I have never inquired.
So this is not about religion. This is about confirming
judges who can be impartial and fair in the administration of
justice. And when a nominee like William Pryor makes some
fairly inflammatory statements and evidences such strongly
held beliefs on such core issues, it is hard for many of us
to accept that he can set aside those beliefs and act as an
impartial judge.

Somehow, that was characterized as questioning General Pryor's
religious beliefs. I do not think any fair reading would reach that
conclusion. In fact, I think Senator Feinstein was as careful as we all
have been to draw that clear and bright line that the Constitution
requires us to draw.
She said at one point there--and it may come as curious to people
following the debate--that she is not certain about how many Catholics
we voted for because, you see, that is not one of the required
questions when a person applies for a judgeship in this country. We do
know, though, just by taking a look at some of their resumes, that they
belong to some organizations which suggest that they might be Catholic.
So I would like to say for the record that the argument that we have
somehow discriminated against Catholics who are opposed to abortion is
not supported by the evidence.
We have, for example, confirmed a circuit judge who was active in the
Knights of Columbus and the Serra Club and sits on the board of a
Catholic school--Michael Melloy.
We confirmed a district court judge who is a member of the parish
council of his Catholic church, the president's advisory board of a
Jesuit High School Parents' Club, the St. Thomas More Society for
Catholic lawyers, and his State's chapter of Lawyers for Life--Jay
Zainey.
We confirmed a district court judge who was the former president of
Catholic Charities of her city's diocese and a member of both the
Catholic League

[[Page S10250]]

and of the St. Thomas More Society--Joy Flowers Conti.
This serves as clear evidence that Democrats do not have an abortion
litmus test for judicial nominees. There have been many we have
confirmed who were opposed to Roe v. Wade and have made it very clear
that they are opposed to it.
Some names that I can refer to very quickly: John Roberts, DC
Circuit; Jeffrey Howard, First Circuit; John Rogers, Sixth Circuit;
Deborah Cook, Sixth Circuit; Lavenski Smith, Eighth Circuit; Timothy
Tymkovich, Tenth Circuit; Michael McConnell, Tenth Circuit; and the
list goes on.
So for colleagues to stand before us and say we discriminate against
Catholics, the record doesn't show it. There are people who clearly
have Catholic affiliations in their background who have been approved
by this committee and are supported by Democrats. For them to argue
that we have a litmus test and turn down judges just because they
oppose abortion denies over 140 nominees coming out of the Bush White
House, most of whom are pro-life and most of whom disagree with Roe v.
Wade personally and still have won our approval. I read a partial list.
In my own situation, I am pro-choice. I have personal feelings
against abortion but believe that in my public capacity women should
have the right to choose. And yet in my own home State of Illinois, of
the 12 judges I have had the privilege to appoint to the Federal bench,
at least 3 I have come to learn afterward were pro-life. I learned it
afterward because I didn't ask them in advance. It really wasn't a
condition for their appointment as far as I was concerned. I just want
them to be fair minded and balanced. Whether they disagree with me on
that issue or one other issue is really secondary.
So what we have before us today is an effort by the proponents of
William Pryor to ask us to look beyond his political beliefs and really
turn this into a debate about religion. I hope we don't do that. I hope
we don't do it for his sake and I hope we don't do it for the sake of
the Senate.

The Senate Judiciary Committee meeting of last week was one of the
saddest times I have spent as a Senator. I saw things happen in that
committee that I hope will never be repeated. I saw members of the
committee raise the issue of religion in a way which the Constitution
has never countenanced and I hope and pray has never happened before in
that committee. I hope it never happens again.
The nomination of William Pryor is fraught with controversy. This
whole question about his involvement with the Republican Attorneys
General Association--we haven't even completed that investigation. This
man's nomination comes to the floor before questions have been asked
and answered that are serious questions about possible ethical
considerations.
I won't prejudge the man as to whether he will be cleared of any
suspicion or not. But in fairness to him, in fairness to the process,
in fairness to the Senate, should not we have completed that
investigation before he was reported from committee?
When it comes to critical issues involving Mr. Pryor's background, a
lot of different groups have raised questions about him. The argument
is being made on the other side that the only reason you can possibly
oppose William Pryor is if you are anti-Catholic.
How then do you explain the editorials in opposition to his
nomination? Editorials from Tuscaloosa, AL; editorials from Huntsville,
AL; the Washington Post; Charleston, SC; St. Petersburg, FL; Arizona;
the Atlanta Journal-Constitution; Honolulu Adviser; Pittsburgh
newspapers--the list goes on.
Are we to suggest that all these newspapers that oppose his
nomination are anti-Catholic? Not if you read the editorials. They have
gone to his record and they have come to the conclusion that he is not
the appropriate person to serve in this circuit court capacity.
Let me tell you some of the issues they raise. Mr. Pryor's zeal to
blur the lines between church and state, a line that was clearly drawn
in our Constitution and clearly drawn by John Kennedy, Presidential
candidate, is a problem. He is so ideological about the issue that he
has confessed, ``I became a lawyer because I wanted to fight the
ACLU.'' He then derided that organization as standing for ``the
American `Anti-Civil' Liberties Union.'' I asked him if he would recuse
himself in cases involving the ACLU. He said no, but he pledged:

As a judge, I could fairly evaluate any case brought before
me in which the ACLU was involved.

Mr. Pryor and I are just going to have to disagree on that particular
statement.
He has been a staunch supporter of Alabama Chief Justice Roy Moore
and his midnight installation of a 6,000-pound granite Ten Commandments
monument in the middle of the State courthouse. The Eleventh Circuit
Court recently ruled that the display was patently unconstitutional and
had to be removed.
At his confirmation hearing, Senator Feinstein asked him to explain
his statement that:

. . . the challenge of the next millennium will be to
preserve the American experiment by restoring its Christian
perspective.

He ducked the question.
I think if you are going to serve this Nation and you are going to
serve this Constitution, you have to have some sensitivity to the
diversity of religious belief in this country. To argue that this is a
Christian nation--it may have been in its origin but today it is a
nation of great diversity. That diversity is protected by this
Constitution. Obviously, Mr. Pryor has some problems in grasping that
concept.
On the issue of judicial activism, not only does Mr. Pryor have
problems with separation of church and state, he also has problems
separating law and politics. He believes that it is the job of a
Federal judge to carry out the political agenda of the President. How
else could you interpret his comments about the Bush v. Gore case in
the year 2000 when he said:

I'm probably the only one who wanted it 5 to 4. I wanted
Governor Bush to have a full appreciation of the judiciary
and judicial selection so we can have not more appointments
like Justice Souter.

That is a statement by William Pryor.
On another occasion, he said:

[O]ur real last hope for federalism is the election of Gov.
George W. Bush as President of the United States, who has
said his favorite Justices are Antonin Scalia and Clarence
Thomas. Although the ACLU would argue that it is
unconstitutional for me, as a public official, to do this in
a government building, let alone at a football game, I will
end my prayer for the next administration: Please God, no
more Souter.

I ask Mr. Pryor, a member of the Federalist Society, whether he
agrees with the following statement from the Federalist Society
mission: ``Law schools and the legal profession are currently strongly
dominated by a form of orthodox liberal ideology which advocates a
centralized and uniform society.'' I have asked this question of almost
every Federalist Society member that has been nominated by President
Bush. Mr. Pryor is the only person who gave me a one word answer. He
said, ``Yes.''
On the issue of federalism, Mr. Pryor has been a predictable,
reliable voice for entities seeking to limit the rights of Americans in
the name of States' rights. He has filed brief after brief with the
Supreme Court arguing that Congress has virtually no power to protect
State employees who are victims of discrimination.
Under his leadership, Alabama was the only State in the Nation to
challenge the constitutionality of parts of the Violence Against Women
Act, while 36 States filed briefs urging that this important law be
upheld in its entirety--the exact opposite position of one Attorney
General William Pryor.
He also filed a brief in the recently decided case of Nevada v.
Hibbs. He argued that Congress has no power to ensure that State
employees have the right to take unpaid leave from work under the
Family and Medical Leave Act. A few months ago the Supreme Court
rejected his argument and said:

Mr. Pryor, you have gone too far this time.

The issue of women's rights has been well documented. I will not go
into those again.
On the issue of voting rights, Mr. Pryor urged Congress to eliminate
a key provision in the Voting Rights Act which protects the right to
vote for African Americans and other racial minorities. While
testifying before this committee in 1997, Mr. Pryor urged Congress to
``seriously consider . . . the repeal or amendment of section 5 of

[[Page S10251]]

the Voting Rights Act'' which he labeled ``an affront to federalism and
an expensive burden that has far outlived its usefulness.''

Given the importance of section 5 of the Voting Rights Act to the
ability of African Americans and other racial minorities to achieve
equal opportunity in voting, this call for its repeal is deeply
disturbing. Thankfully, the Supreme Court and Congress disagreed with
Mr. Pryor about the importance of section 5 of the Voting Rights Act.
There was one case involving inmates' rights which I thought was
particularly noteworthy. He has been a vocal opponent of the right of
criminal defendants. In Hope v. Pelzer, Attorney General Pryor
vigorously defended Alabama's practice of handcuffing prison inmates to
outdoor hitching posts for hours without water or access to bathrooms.
The Supreme Court rejected Mr. Pryor's arguments citing the ``obvious
cruelty inherent in the practice,'' and calling the practice
``antithetical to human dignity'' and circumstances ``both degrading
and dangerous.''
In a July 2000 speech, Attorney General Pryor was outspoken in his
disdain for the Supreme Court's reaffirmation in Dickerson v. United
States of the constitutional protection of self-incrimination first
articulated in Miranda. He called the Dickerson decision, authored by
Chief Justice Rehnquist an ``awful ruling that preserved the worst
example of judicial activism.''
The list goes on.
In the case called United States v. Emerson, Attorney General Pryor
filed an amicus brief to argue that a man who was the subject of a
domestic violence restraining order should be allowed to possess a
firearm.
Let me repeat that.
The man who was the subject of a domestic restraining order should be
allowed to own a firearm.
Mr. Pryor called the Government's position a ``sweeping and arbitrary
infringement on the second amendment right to keep and bear arms.'' He
was the only State attorney general in the United States of America to
file a brief in support of that position.
When it comes to tobacco, he has been one of the Nation's foremost
opponents of a critical public health issue--compensation for the harms
caused by tobacco companies. He has ridiculed litigation against
companies stating:

This form of litigation is madness. It is a threat to human
liberty, and it needs to stop.

Mississippi Attorney General Michael Moore said:

Bill Pryor was probably the biggest defender of tobacco
companies of anyone I know. He did a better job of defending
the tobacco companies than their own defense attorneys.

Arizona Attorney General Grant Woods, a Republican, said of William
Pryor:

He's been attorney general for about five minutes, and
already he's acted more poorly than any other attorney
general.

On the issue of environmental protection, time and again he has
looked the other way when it comes to protecting our environment.
For people to argue that the only position against William Pryor is
based on his religion ignores the obvious. When it comes to his
political beliefs, when it comes to his actions as attorney general of
Alabama, time and time again he has taken extreme positions.

Should this man be entrusted to a lifetime appointment to the second
highest court of the land? I think not. Many others agree with that
conclusion.
I certainly hope that when this debate ends, however it ends, that we
will call an end to the involvement of religion in this debate.
It has been a sad night for me to listen to what some of my
colleagues have said in an effort to promote the political agenda of a
certain part of America in an effort to promote the candidacy of an
individual. I am afraid many of my colleagues have crossed a line they
should never have crossed.
I hope and pray that before we utter the next sentence in relation to
the Pryor nomination that each of us who has taken an oath to uphold
this Constitution will stop and read article VI:

No religious test shall ever be required as a qualification
to any office or public trust in the United States.

Those words have guided our Nation for over 200 years. They should
guide each of us in good conscience.
I yield the floor.
Mr. REID. Mr. President, I served in the Congress since 1972. I have
had the good fortune to listen to some brilliant statements made on
various subjects over 21 years. But I have to say that the statement by
the senior Senator from Illinois tonight is the finest statement I have
ever heard in some 21 years. I hope the people of Illinois know what
pride we have in Dick Durbin.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Graham of South Carolina). Without
objection, it is so ordered.

____________________