[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14786-S14787]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SANTORUM. Mr. President, I just want to thank all of the Members, 
particularly on this side of the aisle, for the terrific level of 
debate we have seen over the past 40 hours. I was amazed, yesterday, 
sitting both here and in my office, and seeing Member after Member come 
to the Senate floor. I have never seen a debate where more of our 
Members came to the floor to let their views be known to the American 
public, of how important this issue is to the future of our country, 
the issue we just voted on, the issue of judicial nominations.
  I was stunned. I thought we would have to scurry around and have sort 
of a core of people who were willing to come to the floor and fill up 
the time. But for 40 hours, 39-plus hours, we had no problem. In fact, 
at 5 o'clock in the morning, Senator Chambliss and I were arguing over 
5 minutes, who was going to get the extra 5 minutes because there was 
such enthusiasm for a cause that we felt was just. It was not a small 
group.
  Some in the media suggested that there was some division over here as 
to whether to take on this strategy. I would say, just look at the 
response of our membership. They came to the floor. They came with 
passion. They came with a conviction that what we were arguing for was 
the right thing for the country. Maybe it was not the right thing for 
us politically. We had that debate about having a higher standard for 
judges, higher than a simple majority, a three-fifths majority, which 
is now the rule. I think this debate and the votes today have cemented 
that.
  Now the standard will be that you have to have 60 percent of the 
Senate in order to be a Federal judge. We have made that the rule. So 
the 214-year history is now gone.
  We had a great debate about it. The rule has changed. I thank all who 
participated on both sides. I thank the staff, the pages, the staff 
here on the floor--the floor staff, which has been rotating, but even 
rotating these jobs were not made for three shifts. We don't have 
three-shift jobs. This is a one-shift operation and they had to work 
three shifts. They did a great job--the folks in the cloakroom, the 
Judiciary Committee, all the leadership staff. I particularly thank the 
staff of the Republican conference--Mark Rogers and Barbara Leeden and 
Elizabeth Keys, Robert Traynham, Melissa Seckora--all the staff who 
have worked so hard, holding press conferences in the middle of the 
night.
  Gosh, we had press conferences, 1:30, 2:30, 3:30, 4:30, 5:30, 6:30 in 
the morning, every hour.
  All the outside groups who were concerned about the future of our 
country and concerned about the future of the judiciary came to 
Washington. I remember walking in late in the evening on Wednesday 
evening, and in the rain, in the wind, people lined up outside the 
Capitol to get into the Capitol to be here on Wednesday night because 
they knew this was a debate that had real significance because they 
knew this was a debate that is going to have a place in history.
  By affirming what has happened four times before today, now five, now 
six--that 168-to-4 chart, that 98 percent chart--that is now history; 
168 to 6. That is not even accurate because there are 6 more they have 
said they will filibuster.
  Obviously, when the minority leader says there is going to be a 
filibuster, you get the ducks in a row. They have been able to do that 
and do it successfully.
  So it is now 168 to 12. Of course, we just started that this year. 
There have only been four, they say. This is the first time it has been 
done.

  It is like a little ball, like dropping a pebble at the top of a 
large mountain. It shakes lose a couple of other pebbles. Pretty soon, 
over time this gets to be a boulder, an avalanche that is coming down 
and is going to hit the judicial branch of our Government.
  I predict, if nothing is done to change the rule, the number will be 
in the hundreds within a couple of years, in the thousands and the tens 
of thousands as this country goes forward. Why? Because we have changed 
the way we consider nominations.
  I am going to repeat what I said at the close of the debate because I 
still hope there is a chance that some Members will reconsider. There 
are Members on our side who have smiles on their faces, Members who 
care deeply about issues that are before the court today who have 
smiles on their faces because they say: Now we have the tool to stop 
activist judges. Now we have the tools we didn't have before. Now they 
have to get 60 percent of the vote for the judges, the Richard Paezes 
of this world and the Marsha Berzons of this world, and those who could 
come on and replace the document I hold in my hand, the Constitution, 
with their own view of the world.
  What an activist judge is, is a little James Madison, just someone 
who thinks they can write their own Constitution. Madison didn't have 
the privilege of having all the knowledge that we have today about what 
is right and wrong. He didn't have the understanding that so many of 
our learned jurists have in doing what is right for the American 
people. So this guy, Madison--it was a pretty good first draft. There 
are many activist judges who think they can write a better 
Constitution, and they do so on a regular basis. What Madison thought 
would change the Constitution is something that is actually in the 
Constitution, and that is a procedure for amending the Constitution. 
But a lot of Members on the other side of the aisle don't believe we 
should have to bother with that rather cumbersome process in this fast-
changing world in which we live. It just takes too much time. It is far 
too much effort. It involves having to convince the American public. 
Why should we bother with such folly?
  We, the enlightened, the intellectuals, those who have reached the 
pinnacles of our professional occupations, we in the judiciary, we are 
the ones who should be able to lay out for future generations what 
should have been done for them.
  So this elitist, activist corps--elitist in the most pejorative sense 
of the word ``elitist''--are activist judges who take this document, 
light a match to it, and throw it away and say: We are a country of 
people, we are a country of people, not of laws.
  That is what we are going to get more of. So what my colleagues 
believe we can do now is apply the same standard they have applied to 
Janice Rogers Brown, elected by 76 percent of the vote in the State of 
California; Priscilla Owen, elected by 84 percent of the people of the 
State of Texas; Carolyn Kuhl, William Pryor, Charles Pickering, Miguel 
Estrada--the list goes on and will go on. It will go on.
  This is a huge tragedy, what happened here today. The point is, as 
the Senator from Iowa, Mr. Harkin, when we came in the Chamber just 40-
some

[[Page S14787]]

hours ago had a sign held up: ``I am going to watch 'The Bachelor'.'' 
That was funny. I chuckled. But true humor, good humor, really good and 
biting humor, always has an element of truth to it, doesn't it? It 
always has an element of truth. The element of truth here is that the 
other side does not want you to hear what is going on. They want you to 
go and watch ``The Bachelor,'' tending to your business. We will take 
care of the business here. You need not mind what we do here. No, don't 
bother with us; we'll handle it. You could watch ``The Bachelor.'' We 
will take care of the people's business here and don't bother with us.

  Hopefully, some Americans paid attention. Hopefully, some Americans 
heard the debate that went on here in the Senate Chamber for the past 
40 hours and heard very clearly that we have changed, potentially 
forever, the standard by which we will confirm judicial nominees. In so 
doing we eliminate those, not just from the right.
  Let me assure you, my colleagues on the other side of the aisle, let 
me assure you we are not just eliminating those on the right, because 
what is good for the goose is good for the gander. When you twist and 
contort the law, it becomes the law for everybody. It is twisted and 
contorted in its ugliest sense, but it is there for all to see and 
there for all to use. Rest assured, it will be used. Whether it is by 
the Senator from Pennsylvania--I hope not because I hope never to be in 
the minority, and I hope never to have to serve under a Democrat 
President. That is obviously my objective. I hope I don't have the 
opportunity or the desire to ever use it. But I suspect someday, 
someone--either myself or someone who shares my philosophy and ideas of 
how this Government should be run and how the judiciary should behave--
will take this tortured process that has been cemented today and use it 
against the very people you believe are mainstream, who the Democrats 
of the left believe represent the deep and wide channel that is the 
mainstream of American thought; people who believe that ``under God'' 
should not be in the Pledge of Allegiance, that deep, wide mainstream; 
people who believe this is a living document.
  Let me interpret what that means. That is what you will hear a lot 
from those on the other side, that this is a living, breathing 
document. A living, breathing document? Yes. It is living and 
breathing, but it is not a document. It is a judge. When you hear 
``living and breathing,'' documents don't live and breathe. They say 
exactly what they mean. Documents written 214 years ago don't change by 
themselves. They don't breathe. They do not live. They were put there 
and put on paper for a reason--to provide stability to this country and 
certainty for those here in America who know their rights and who 
understand those rights throughout time. If we are to change these 
words, we do so through the process where the people of America--not 
some unelected few--have input into that process. It is called the 
amendment process to the Constitution which requires the Congress to 
act and three-quarters of States to affirm and ratify. That is how we 
change this document--not by appointing and confirming living, 
breathing judges to make it their own. That is what they have done.

  They think now that they have a sufficient number of these folks on 
the court that they don't want any conservative judges. What is a 
conservative judge? A conservative judge is not someone who changes 
this document to reflect their ideology. I would not call that a 
conservative judge. I would not call that a judge for whom I would 
vote. That is not a conservative judge. I don't want a judge who is 
going to come in and contort the Constitution to my thinking. I want a 
judge who is going to live by what this Constitution says. It reflects 
the will of the people. That is what a conservative judge is. A 
conservative judge is someone who abides by the Constitution--not 
someone who sees it as a living, breathing document. Judges who are 
conservative are called ``strict constructionists''--to strictly and 
narrowly construe controversies that are before them and decide cases 
in the narrowest sense--not to use a dispute between parties as an 
opportunity to legislate.
  The Senator from Kansas, Mr. Brownback, said at about 4:15 in the 
morning that what is really happening here is this new test is being 
introduced by Senators on the other side of the aisle--this ideological 
test.
  Your job as a judge is to look at the disputes between parties, see 
the applicable law that has been passed by Congress, the State 
legislatures, or provisions in the Constitution and apply those to the 
factual circumstances before you. That is your job. If that is your 
job, then why should we be concerned about your ideology? That is a 
pretty fair question. If all you are supposed to do is look at the 
statutes and use the rules and the statutory constructions which are 
laid out, or look at the Constitution and refer to the interpretations 
of the Supreme Court with respect to that area of the law, then why at 
the district court or on the appellate court level should we be 
concerned about your ideology? It should not be a factor because you 
are simply applying the law. A liberal can apply the law just as easily 
as a conservative can apply the law and look at ideology.
  Why should your political ideology have anything to do with it if 
that is all your job is? I don't mean to demean by saying ``if that is 
all your job is.'' It is a very important job. It is an adjudicatory 
process. It is a very important process in our country. It is one of 
the three branches of Government. It is their responsibility to do 
that. It is not the responsibility of the Senator from Arkansas or 
Nevada to settle disputes and make decisions. We give that to people 
who study the law, understand it, and then make the decisions based 
upon it. We are the ones who create the law. We are the ones who have 
the great debates on what the law should be that they apply.

  The President is the one who executes the law, and in the case of the 
judiciary appoints those who prosecute it.
  I will say in conclusion that what is happening now with this 
political test is a recognition by the other side--an admission by the 
other side--that no longer are judges just there to try facts and apply 
the law, but they are there--in fact, the other side wants them to be 
there to change the law--not to apply the law but to change the law to 
reflect the ideology that is dominant on their side of the aisle. They 
do not want judges who will apply the law. They want judges who will 
make the law. You would think they would not want to give up their 
legislative prerogative. That is our prerogative. It is our job to make 
the law.
  What they have found over the years is that the public will not buy a 
lot of stuff they want to sell. They can't get it done. What they have 
figured out is a way to avoid having to go through this cumbersome 
process of writing the laws, getting the public to go along with it, 
and having to stand for things that are unpopular, which is to just 
find people who will do it for them and they don't have to stand for 
election. We can get them in there and they are there for life. They 
can do our bidding because we can't get it done.
  A very dangerous thing happened here today. It will not serve this 
country well. It will politicize the branch of the Government that 
heretofore has stayed fairly apolitical. It is a mistake.
  I hope and pray that Americans will write and talk to their Members 
of the Senate, ask them, plead with them to stop this. Put this genie 
back in the bottle and put it away--throw it away. It is not good for 
America. It is not right for America. It has never been America. For 
214 years we have kept politics out of the judiciary. Let us not 
politicize it. People are so tired of politics. They complain and rail 
about it all the time. What have we done here today? We have now 
injected a healthy dose of it into the judicial system.
  May God help this country for what we have done today.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Ensign). The Senator from Arkansas is 
recognized.

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