[Congressional Record Volume 150, Number 91 (Tuesday, July 6, 2004)]
[Senate]
[Pages S7541-S7563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NOMINATION OF J. LEON HOLMES, TO BE UNITED STATES DISTRICT JUDGE--
                               Continued

  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. We are under controlled time. The Senator from 
Vermont controls 110 minutes, and the Senator from Utah has 106 minutes 
remaining.
  Mr. LEAHY. I thank the Chair.
  Mr. President, the Senator from California, Mrs. Boxer, wishes to 
speak on a matter of personal concern to her State. I believe she 
mentioned this to the Senator from Utah. I ask unanimous consent that 
she be yielded 8 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from California is recognized.
  (The remarks of Mrs. Boxer are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I yield myself such time as I may need.
  I welcome the distinguished Presiding Officer back from his break, 
and I hope he enjoyed his as much as I did, being in Vermont. In fact, 
I must say I hated to leave Vermont today; it was so nice.
  But as the Senate resumes our deliberations for this session, I would 
like to make note of some matters that occurred on this floor as we 
were adjourning for the recess. The Senate confirmed six more judicial 
nominees. That brings to 197 the total confirmations since President 
Bush took office.
  The distinguished Presiding Officer and others may recall, we only 
had one roll call vote on a judicial nominations that week. At the 
request of the distinguished majority leader, I agreed to have five 
judicial confirmation votes done by a voice vote. As often happens when 
we consider the judges by voice vote, I think the public, many 
Senators, and the press have little opportunity to take note of our 
actions or, as in this case, the extraordinary achievement. I say 
extraordinary because, when the Republicans controlled the Senate in 
the 1996 session, the last year of President Clinton's first term, they 
allowed only 17 judges to be confirmed that whole session and they 
refused to allow any circuit court nominees to be confirmed that entire 
time. If one Republican Senator objected, it was in effect a filibuster 
of the whole Republican caucus. They would not allow any circuit court 
nominees to go through during the 1996 session, not one. I mention that 
because that was the most recent year, besides this year, in which a 
President was seeking reelection.
  Of course, this year alone, by the end of June, we far exceeded the 
number of judicial nominees confirmed, including circuit judges, for 
this President. We

[[Page S7542]]

confirmed 28 of President Bush's judicial nominees by the end of June, 
including 5 to the circuit courts. Again, I note that--notwithstanding 
the more than 60 judicial nominees who were blocked by the Republican 
leadership under President Clinton and the fact they allowed only 17 
judges during the 1996 session in his reelection year, and not a single 
circuit court judge--we have so far confirmed 28 judicial nominees of 
President Bush, including 5 circuit court nominees.
  In fact, the Senate has confirmed nearly 200 judicial nominees of 
President Bush. In this Congress alone, the Senate has confirmed more 
Federal judges than were confirmed during the 2 full years, 1995 and 
1996, when Republicans first controlled the Senate and President 
Clinton was in the White House. We also exceeded the 2-year total at 
the end of the Clinton administration when Republicans held the Senate 
majority in 1999 to 2000.
  While the Republican-controlled Senate, during its 25 months in the 
majority, has not confirmed quite as many as the 100 nominees the 
Democrat-led Senate confirmed in our 17 months, the total of 197 is 
still the fourth highest 4-year total in American history.
  I am actually saying this to compliment the work of my Republican 
colleagues for this Republican President. During their 25 months in the 
majority, 97 of the judicial nominees of President Bush have been 
confirmed. During the 17 months Democrats lead the Senate, we confirmed 
100 judicial nominees of President Bush.
  In all, we have confirmed more lifetime appointees for this President 
than were allowed to be confirmed in the most recent 4-year 
Presidential term, that of President Clinton, from 1997 to 2000. We 
have actually confirmed more judicial nominees of this President than 
the first President Bush had confirmed by the Senate from 1989 through 
1992, and we have confirmed more of President George W. Bush's judicial 
nominees than were confirmed during President Reagan's entire first 
term from 1981 through 1984, when he had a Republican majority in the 
Senate. One can't help but think that maybe if he had a Democratic 
majority part of the time he may have had even more confirmations.
  I would also note that the five circuit court nominees of President 
Bush confirmed this year are five more than Republicans allowed to be 
confirmed during President Clinton's reelection year.
  These may seem like just numbers, but I think Democratic Senators did 
what I said we would do when I became chairman of the committee: that 
we would work to lower the partisan divide by treating President Bush's 
judicial nominees more fairly than Republicans treated President 
Clinton's nominees, by working harder to fill vacancies in the federal 
courts. Under the leadership of Tom Daschle who at that time was the 
Senate majority leader, we confirmed 100 judicial nominees in 17 
months, a much faster pace than the previous period of Republican 
control of the Senate.
  The number of Federal judicial vacancies for the whole country is 
only 27, the lowest it has been in decades. I mention that because when 
you look at the period from 1995 to 2001 when the Republicans 
controlled the Senate with the Democrats in the White House, vacancies 
on the federal courts reached over 100 and through systematic blocking 
of nearly two dozen circuit court nominees of President Clinton, 
circuit vacancies more than doubled. Despite additional retirements 
since then, after 197 judicial nominees of President Bush have been 
confirmed there are now little more than two dozen vacant seats left in 
the federal judiciary.
  A second development was the statement of the Democratic leader 
urging bipartisan communications and cooperation. Senator Daschle's 
proposal to seek a politics of common ground should be commended. It 
should be built upon by both sides. I think many Republican partisans 
treated Senator Daschle most unfairly during his years as the 
Democratic leader. It is a measure of that good man and a reflection of 
his understanding of the Senate that he has sought out common ground. 
It is a reflection of Senator Daschle's understanding and love for our 
system of Government that he disdains bitterness and rejects 
retaliation. Instead, he advocates counsel, cooperation, and respect. I 
commend my friend, the senior Senator from South Dakota, for that.
  Many in this Chamber might also recall that one of President 
Clinton's first acts upon reelection was to bestow the Presidential 
Medal of Freedom on his political opponent, Senator Bob Dole. I 
consider myself very fortunate to be one of the Senators who Senator 
Dole invited to the White House for that ceremony. I remember the grace 
shown both by Senator Dole and by President Clinton.
  We would also do well to remember Senator Bob Dole's address to 
Members of the Senate as part of the leadership series of speeches in 
the Old Senate Chamber. In that address, he observed the Senate should 
proceed through bipartisanship.
  Democrats have acted with bipartisanship toward judicial nominations 
and a record number of this President's judicial nominations have been 
confirmed. A few have not. Some of the nominations the President has 
proposed for lifetime seats on the federal bench have been extremely 
controversial, extremely troubling. Today the Senate is debating 
President Bush's controversial nomination of J. Leon Holmes to a 
lifetime position to the Federal court in Arkansas. For some reason, he 
is finally coming up for a vote today. The Republican leadership could 
have brought him up at any time in the last 14 months since his 
nomination was reported out of the Judiciary Committee. The Democratic 
leadership had no objection to him coming up. Many of us oppose the 
nomination, but we had no objection to bringing him up. For some 
reason, the Republican leadership refused to do so for almost 14 
months.
  As you look at the public record of this nomination, you can almost 
see why they were embarrassed to bring it up before now. In fact, this 
controversial nomination was not only denied consideration by the 
Republican leadership for over a year, but on a remarkable day last 
spring the Republican-controlled Judiciary Committee didn't even give 
him a positive recommendation. They voted him out without 
recommendation. On the few occasions that has happened with lower court 
nominees in the past, that pretty much determined you would not get a 
vote on the floor.
  Can you imagine how troubling the record must be if the majority were 
Republicans, the nominee was of a Republican President, and a majority 
of the Republicans were not willing to vote for him in the Senate 
Judiciary Committee? So the leadership held him back for over a year.
  I think I understand why. I think I understand why some of my friends 
on the other side of the aisle pay lip service to this nomination and 
are rather embarrassed by it.

  If you look at the record of this nominee, it is quite clear he has 
made numerous strident, intemperate, and insensitive public statements 
over the years regarding school desegregation, political emancipation, 
school prayer, voting rights, women's equal rights, gay rights, the 
death penalty, the Bill of Rights, and privacy, among other issues.
  For example, he has argued in the area of reproductive privacy law 
that ``concern for rape victims is a red herring because conceptions 
from rape occur with the same frequency as snow falls in Miami . . . ''
  I prosecuted a lot of rape cases when I was a prosecutor, and a lot 
of child abuse cases where the child was raped--something that is rape 
under the law of every State in this Union. I find the statement of 
this nominee on this issue to be insensitive and appalling. Speak to 
the family of a 13-year-old girl who is pregnant after being raped by 
her family's best friend, the next-door neighbor, and in some instances 
by her father, and tell them that pregnancy does not happen from rape. 
I prosecuted some of those cases. They are the most sickening and 
appalling things.
  But I tell Mr. Holmes, if he is confirmed and cases come before his 
court, I hope he will open his eyes. I hope he will open his eyes to 
reality and realize these things do happen--not just in this country. 
What would he say to the women who are being raped in Sudan for the 
purpose of forcing them to have babies of a certain hue as part of the 
genocide that is going on in Sudan? It is genocide. Our administration 
doesn't want to admit it is, but it is.

[[Page S7543]]

  Rape is a serious matter. Mr. Holmes called concerns about pregnant 
rape victims ``trivialities.'' That is his word--``trivialities.'' Ask 
a pregnant rape victim if they consider this a trivial matter.
  By making such remarks, Mr. Holmes has revealed how tightly closed 
his mind is to seeing the realities of this world. But worse than that, 
his statements also reveal a callous disregard for the trauma of women 
who are raped and a disturbingly willful ignorance of the facts.
  An interesting matter is that according to the Weather Almanac, it 
did snow one time in Miami, Florida during a freak cold spell in 1977. 
But a more disturbing statistic is that, according to the American 
Journal of Preventive Medicine, there were more than 25,000 pregnancies 
that resulted from rape in 1998 in our country alone. Not 1, 2, 3, or 
4; it was 25,000. And this nominee says such things don't occur. He 
says that people who express such concerns are focused on trivialities.
  Where in heaven's name has he been living? What kind of a mindset 
would he bring to a Federal bench? Why in heaven's name did the 
President nominate him?
  In fact, according to the medical journals, as many as 22,000 of 
those pregnancies could have been prevented if the women had received 
emergency contraceptive treatment. Instead, with more than 300,000 
rapes each year in the United States, more than 25,000 women each year 
find that not only were they violated, but they are pregnant as a 
result. One can barely imagine the trauma and heartache of such a 
circumstance.
  For many rape victims, the girl is under 18 or the victim of incest. 
It is hard to imagine the pain and difficult decisions these young 
women face. But Mr. Holmes has called concerns about these women 
``trivialities.''
  This type of statement and attitude makes one wonder what kind of 
judge he would make, and federal judgeships are for life. Can you 
imagine if such cases were before a judge like this? In my own 
conscience, I could not reward a lifetime position of power to such a 
person with power over women and men alike.
  I think this sort of judgmental and intemperate approach is opposite 
of the qualities needed for the Federal bench. Indeed, given Mr. 
Holmes' strong commitment to various political causes of the right wing 
over these past two decades, a Republican Senator was moved to ask this 
nominee: ``Why in the world would you want to serve in a position where 
you have to exercise restraint and you could not, if you were true to 
your convictions about what the role of a judge should be, feel like 
you have done everything you could in order to perhaps achieve justice 
in any given case?''
  Mr. Holmes, for his part, conceded:

       I know it is going to be difficult for this Committee to 
     assess that question, and I know it is a very important 
     question.

  But for this Senator, a member of that committee, it is a very 
difficult question, especially with a record like Mr. Holmes'. And it 
is certainly not a question I would answer by giving somebody a 
lifetime appointment to a position of such enormous power.
  In fact, the question is so difficult that at the Judiciary Committee 
business meeting, where Democrats were prepared to vote on Mr. Holmes' 
nomination, Republican Senators asked for more time to review Mr. 
Holmes' record. I think perhaps that at that meeting some of them heard 
for the first time some of the statements made by Mr. Holmes in the 
material he submitted to the Senate Judiciary Committee. Eventually, in 
May of last year, they reported him out provided they did not have to 
vote for him, provided they could vote him out without recommendation. 
That does not happen very often.
  The last time I can remember that happening was with Judge Clarence 
Thomas. His nomination was reported without recommendation in order to 
allow a vote before the full Senate when he could not achieve a 
majority in the committee.
  Like Justice Thomas, Mr. Holmes has been a proponent of what is known 
as a ``natural rights'' or ``natural law'' theory of interpreting our 
Constitution in order to achieve judicial recognition of rights he 
believes should exist. He has been supportive of reading new and 
undefined rights into the Constitution based on his personal or 
political conception of ``justice.'' This sounds to me like the 
judicial activists the President has said he does not want to see on 
the bench. I guess if they are very conservative Republican judicial 
activists, it is OK.
  Mr. Holmes has supported efforts to require that the language of the 
Constitution be trumped by language he prefers in the Declaration of 
Independence in order to advance a social agenda against choice and 
against the separation of church and state. This method of interpreting 
the Constitution, the fundamental charter of our democratic nation, 
represents an approach which has been advocated by the far right in its 
effort to erode the longstanding separation of church and state that 
assures all Americans their first amendment freedoms.
  The idea of ``natural law'' is what led to the tyrannical period of 
judicial activism at the turn of the last century in which the Supreme 
Court struck down numerous State and Federal laws written to protect 
the health and safety of working Americans. Those decisions are 
discussed at length in law school. In the activist Supreme Court 
decision of Lochner v. New York federal judges found a ``natural 
right'' to contract in employment decisions that trumped any 
legislative efforts to end child labor--which in many cases was 
basically child slavery--sweatshops, and the terribly unsafe workplaces 
at the beginning of the Industrial Revolution. The Supreme Court's 
reliance on ``natural rights'' was repudiated in 1937--70 years ago.
  Mr. Holmes has been critical of the dissenting opinion in the Lochner 
decision, and he seemingly embraces the idea that the activism of the 
Supreme Court almost 100 years ago was justified.
  Again, I mention this because President Bush has spoken repeatedly 
against judicial activism while simultaneously nominating people likely 
to be judicial activists for his social and political agenda, people 
such as Mr. Holmes. This approach is one of those: Watch what we say; 
don't watch what we do. Republicans will say we are against judicial 
activists with the one hand, and with the other hand quietly nominate 
judicial activists.
  One of the most troubling things Mr. Holmes has written is his 
criticism of what is known in our law as ``substantive due process.'' 
As even Mr. Holmes conceded in his answers to my questions, substantive 
due process is the means by which the rights in the Constitution's Bill 
of Rights apply to protect individuals from State governments that 
would deprive them of those rights, such as the right to freedom of 
religion, freedom of speech, freedom of the press. Mr. Holmes concedes 
that as a scholar he disagreed with the idea of substantive due 
process, but now, when he is facing a vote on his nomination in the 
Senate, he says basically: Oh, by the way, of course now I see it as 
settled law. He did not see it that way a few short years ago.

  That reminds me again of another nomination. These issues rose during 
the hearings on Clarence Thomas's hearings on his nomination to the 
Supreme Court. He had given many speeches praising natural law 
principles, but then disavowed them during his Supreme Court 
confirmation hearings. For example, he praised Lew Lehrman's article, 
``The Declaration of Independence and the Right to Life,'' as ``a 
splendid example of applying natural law.'' That article looked to the 
Declaration of Independence as the basis for overturning Roe v. Wade. 
Then, despite his assurances to the Senate Judiciary Committee that he 
would follow the law in this area if he was confirmed, of course, 
Justice Thomas immediately voted to overturn Roe v. Wade--just the 
opposite of what he said--as soon as he was confirmed. The Senate 
trusted him, and we saw what happened.
  Now, Mr. Holmes wishes to regard this issue as one in which we should 
just trust him to set aside what he himself calls his ``history of 
activism.'' He admitted to a reporter that the ``only cause that I have 
actively campaigned for and really been considered an activist for is 
the right-to-life issue.'' But then he told the Senate Judiciary 
Committee that he would not promise to recuse himself from those

[[Page S7544]]

cases in which he has a history of activism. What he said was: Just 
trust me.
  Well, I do hope that if the Senate Republicans disagree with me and 
Mr. Holmes is confirmed, that he will keep his word and he will not 
impose his political views on others as a judge, especially as he was 
under oath when he made that promise. But I have seen too many, even 
though they were under oath, go back on their word as soon as they were 
confirmed.
  This debate is not about his position on right to life issue. We have 
confirmed numerous judicial nominees of President Bush who have been 
active in the right-to-life movement or litigation, such as Judge 
Lavenski Smith, confirmed to the Eighth Circuit; Judge John Roberts, 
confirmed to the DC Circuit; Judge Michael McConnell, confirmed to the 
Tenth Circuit; Judge Ron Clark, confirmed to the District Court in 
Texas; Judge Ralph Erickson, confirmed to the District Court in North 
Dakota; Judge Kurt Englehart and Judge Jay Zainey, confirmed to the 
District Court in Louisiana; and Judge Joe Heaton, confirmed to the 
District Court in Oklahoma--among the 197 judicial nominees of 
President Bush who have been confirmed.
  I have voted for many judges who made it very clear in their public 
record that they had taken a right-to-life position. In fact, the 
judges I just mentioned have been at the forefront of efforts to 
reverse Roe v. Wade as lawyers, and all were confirmed.
  So it is unequivocally false to claim that Democrats have employed a 
pro-choice litmus test in voting on judicial nominees--not with all the 
ones we have voted for who would fall in that area. But the same, about 
the litmus test, cannot be said of the choices made by President Bush. 
It seems he has sought out individuals who share his pro-life views and 
who have strong pro-life credentials for these lifetime positions as 
Federal judges. In fact, I cannot think of a single judicial nomination 
President Bush has made of an individual who has been active on the 
pro-choice side of this issue. Senate Democrats have shown we do not 
have a litmus test. The White House has shown it does.
  I am also saddened to note Mr. Holmes has attacked efforts to enforce 
the Supreme Court's decision in Brown v. Board of Education, the 
landmark case which declared that separate is inherently unequal. As a 
nation we have just celebrated the 50th anniversary of this unanimous 
decision of the Supreme Court--a unanimous decision with conservative 
and liberal justices joining together, but here we have a nominee who 
has criticized efforts to enforce this decision.
  Brown v. Board of Education helped break the shackles of Jim Crow 
that had bound the Nation's dream of racial equality and the 
Constitution's promise of the 14th amendment. Instead, Mr. Holmes 
suggested that the Federal courts should not have the power to order 
school districts to take actions to remedy segregation that was 
blatantly unconstitutional. But I would remind him that, fortunately, 
there were judges who did not take this twisted, I might say, cowardly 
view of Brown v. Board of Education.
  There were countless judges appointed by Republicans and Democrats 
who had courage in their efforts in the South because they did not 
believe our federal courts lacked the power to enforce a remedy to the 
violation of a fundamental constitutional right. Because of their 
courage, Brown v. Board of Education was enforced. One has to ask, if 
Mr. Holmes, based on his statement, would have shown that courage.
  I respect the legacy of Judge Ronald Davies, who ordered that Little 
Rock Central High be integrated and had the independence and the 
strength of character to stand up to Governor Orval Faubus and insist 
on the enforcement of our Constitution as interpreted by the Supreme 
Court. We do not honor his legacy--his great, great legacy on this 
issue--by voting for this nominee.
  In fact, Mr. Holmes has suggested that Booker T. Washington was 
correct to teach that slavery in the United States, which resulted in 
the inhumane, involuntary servitude and often brutal deaths of millions 
of African Americans, was part of divine providence. Mr. Holmes who 
wrote his dissertation on Mr. Washington's controversial ideas, stated 
that ``what we need to learn from Booker T. Washington is that not 
everything that parades under such banners as `liberation' and 
`freedom' is genuine.''
  My grandparents and great-grandparents came to this country because 
they believed that the freedom promised by the Constitution in America 
is genuine. They believed liberation is genuine. They believed that 
this was a country that guaranteed it. I was sorely disappointed to 
hear Mr. Holmes' statement.
  I do not think Mr. Holmes is simply out of step with reasonable 
interpretations of liberty, privacy, and equality. He is marching 
backward in the direction of an era in which individual rights under 
our Constitution were not fully endorsed by the courts and were often 
empty promises. While such a narrow approach may once have been in 
favor among a few, his hostility to modern understandings about civil 
rights and human rights is eccentric, to say the least. It is the 
Senate's job under our Constitution to serve as a check on the 
executive branch in nomination and it is our job to protect the rights 
of the American people by trying to ensure that we have a fair and an 
independent Federal judiciary.
  Given his views of equality and freedom, it is perhaps not surprising 
that Mr. Holmes has also been critical of full endorsement of voting 
rights. For example, he represented the Republican Party of Arkansas 
before the Arkansas Supreme Court in late 2002 to reverse a lower court 
order allowing voting hours to extend beyond statutory times set in 
Pulaski County, in Little Rock. In the Republican Party of Arkansas v. 
Kilgore, Mr. Holmes was the party's lawyer in its emergency petition to 
the Arkansas Supreme Court.
  According to his questionnaire, the Democratic Party ``obtained on 
order at 6:46 p.m. on election night extending the voting hours from 
7:30 p.m., the statutory time for concluding voting, to 9:00 p.m. for 
Pulaski County.''
  Subsequently, Mr. Holmes was able to get all 300 ballots cast after 
7:30 thrown out, even though many of those people, working people, who 
voted had been waiting in long lines, waiting for their right to vote. 
According to press accounts, many of these long lines were in precincts 
with large numbers of African Americans. I think we should all be 
concerned when votes are not counted, when the American citizens who 
exercise their right to vote are disenfranchised. Mr. Holmes does not 
give much weight to this concern.
  During the Bush v. Gore recount litigation, Mr. Holmes wrote a letter 
to the editor strongly opposing the accurate counting of Presidential 
ballots. Why? Such a recount would result in more votes to the 
Democratic candidate. I do not believe that with the record of this 
nominee that he will be impartial on such issues in Federal court. I 
would hate to be a Democrat to have to come before his court with views 
like this, but it appears that this is a case where the White House is 
saying: We do not want an independent Federal judge. We want somebody 
who we hope will be an arm of the Republican Party from the bench.

  Finally, I note that among the many very troubling things this 
nominee has said, he has written that he does not think the 
Constitution was made for people of different views. I believe our 
Constitution's tolerance and protection for a diversity of views is one 
of the things that has made our Nation strong. Just look at the first 
amendment, the beginning of our Bill of Rights. The first amendment 
says you have the right to practice any religion you want or none if 
you want. It says very clearly you have a right of free speech. What it 
says is that we will have diversity because people have freedom of 
conscience. People have different ideas. Not only does the Constitution 
inherently value diversity, but also it guarantees that diversity will 
be protected. Anywhere you have diversity protected, you can have a 
strong democracy.
  I cannot think of anything I have heard by any nominee that goes so 
much against our vision of America than to say that our Constitution 
was not for people of different views. Mr. Holmes seems to think the 
Constitution is meant only for people who share his own views of the 
world. I cannot imagine a fairminded person suggesting, as this nominee 
has, that Justice Oliver Wendell Holmes erred when

[[Page S7545]]

he wrote that the judicial activism of a century ago was wrong. Justice 
Holmes stood up against other judges who were substituting their 
personal, political, and economic views for those of legislators. 
Justice Holmes observed our Constitution is made for people of 
different views, but Mr. Holmes specifically objects to that vision of 
our Nation's charter.
  I cannot imagine a fairminded and open-minded person staking out the 
ground that Mr. Holmes has. Mr. J. Leon Holmes has taken issue with 
that bedrock principle of our law. It is abundantly clear from the 
nominee's own writings and record why this nomination has stirred such 
controversy in the Senate and among the American people. Mr. Holmes 
might be one of the most intolerant nominees we have had before the 
Senate for a confirmation vote in the time I have been in the Senate. I 
can see why, even with a Republican-controlled Judiciary Committee, he 
could not get a majority vote to support him. He should not get a 
majority vote in the Senate.
  Ask yourselves, men and women of this Senate, can you really vote to 
give somebody a lifetime appointment when they interpret the laws of 
this Nation--somebody who says that the laws are not made to protect 
diversity in America? Tell my Irish grandfather and my Italian 
grandfather, both of whom were stonecutters in Vermont, that our 
Constitution should not protect people from diverse backgrounds. I 
cannot believe that a judicial nominee would take issue with this core 
value because he wants to impose his own political views on the 
Constitution.
  What we have before us is a very troubling nomination. Here, the 
President, who campaigned against the idea of judicial activism, has 
nominated somebody who is unabashedly an activist in a wide range of 
issues taking a narrow view of individual rights. The President, who 
has said he wants to respect all views in the country, has nominated 
somebody who does not believe in such diversity.
  I still cannot get out of my mind the comments about rape and 
pregnancy. I still have nightmares when I think of some of the cases I 
prosecuted, some of the children I counseled, some of the families who 
grieved in my office, some of the lives I saw shattered by children who 
had been raped, became pregnant from that rape, and also were abused.
  I will soon yield the floor so others may speak. I will vote against 
Mr. Holmes. He is not a man who should be on the federal bench with a 
lifetime post interpreting the rights of others, a man whose mind is so 
set against women's rights no matter how polite he may be, so set 
against the idea of protecting diversity, so set against the way our 
Constitution should be interpreted. His writings are a throwback to 
darker days in our Nation's approach to the law and the fundamental 
freedoms promised by our Constitution.
  I yield the floor.
  Mr. HATCH. Mr. President, I have been here a long time. I sat through 
the comments of the Senator. I have heard a lot of remarks on the floor 
of the Senate with regard to judges. In fact, I have heard them for the 
last 28 years. I have to say that not only do I totally disagree with 
everything the distinguished Senator from Vermont has said, but I 
believe he has seriously distorted this man's record. Let me just 
answer these distortions with maybe a few points.
  No. 1, this man has the support of virtually everybody who counts in 
Arkansas--Democrats and Republicans.
  No. 2, he has the support of the leading newspapers in Arkansas, 
which are not necessarily known for supporting Republicans.
  No. 3, this man is an intellectually profound man who earned a Ph.D. 
from Duke University before he got his law degree. He graduated with 
honors with his law degree as well.
  No. 4, this man has the blessing of the American Bar Association, 
with the highest rating a person can have.
  No. 5, Leon Holmes is a very religious person, and virtually 
everybody who writes in his favor--virtually everybody I have seen, 
including many Democrat leaders in Arkansas--state that he is totally 
capable of putting aside his deeply held personal beliefs in order to 
act with dispassion and fairness on the bench.
  No. 6, a number of Democrat pro-choice women lawyers have written in 
and informed us that he has been their mentor, their advocate to 
partnership in his law firm; that he has not only been fair, he has 
been decent, honorable, and he has been their friend, even though they 
disagree with some of his personal views.
  My gosh, if we are going to bring up every case an attorney has 
tried, because we differ with his particular clients, and paint the 
attorney as somebody who is not a good person, as has been done here, 
we would not have very many judges confirmed.
  I could go on and on. Let me say that you don't get the well-
qualified highest rating from the ABA because you are a jerk, as has 
been painted here. You don't get the support of Democrats and 
Republicans in your home State if you are a partisan who won't obey or 
follow the law. You don't get a Ph.D. from Duke unless you are a very 
bright person and somebody who has earned the right to a Ph.D. His 
studies were mainly of three great Black leaders, including DuBois, 
Washington, and Martin Luther King, Jr.
  I could go on and on. I am just saying that I guess we could find a 
way to decry anybody who has ever tried a case, or at least a 
controversial case. Attorneys do that. I know the distinguished Senator 
from Vermont has done that. I have done that. If this body cannot 
understand why a person, when they are very young, makes some 
statements they are sorry they made later, then what body can? Many of 
the statements that have been described today are statements that were 
made almost 24 years ago, for which Leon Holmes has apologized and has 
received forgiveness from the people of Arkansas, and especially the 
two Senators from Arkansas, who know him more than anybody else here. 
They are both strong advocates for Leon Holmes.
  Yet we sit here and hear very inappropriate comments and, in my 
opinion, highly distorted, about a man who is considered one of the 
better lawyers in Arkansas, maybe one of the better lawyers in the 
country. Look, it is time we quit playing these games with judges. Our 
side should not do it and the other side should not do it. If you 
disagree with Leon Holmes, vote against him, but you don't have to 
distort his record. Virtually every legitimate criticism he has had has 
been answered, and answered substantively. In fact, every legitimate 
question that has been raised has been answered.

  This is a fine man who has the support of his media, which is pretty 
unusual for a pro-life Republican. He has the support of the bar down 
there. He has the support of Democratic women, as well as Republican 
women. He has the support of people who live religious lives. He has 
the support of his partners, many of whom are Democrats who don't agree 
with his personal views--although I think many would agree with his 
personal views. His personal views are legitimate, but there is room to 
disagree. But I don't know anybody of substance in Arkansas who thinks 
this man is unworthy to be on the Federal district bench, or thinks he 
will not obey the law when he gets on the Federal district bench, or 
thinks he will not uphold the law when he gets on the Federal district 
bench.
  I could go through every argument that has been made and every one is 
not unanswerable but I think overwhelmingly answerable. It comes down 
to some statements he made a long time ago for which he has apologized, 
which he has said were insensitive. He was a young man dedicated to the 
pro-life movement and he made some insensitive statements, as some do 
on both sides in pro-life or pro-choice contingencies.
  This man deserves a vote up or down. I hope he will receive that and 
I hope he will be confirmed. But those who vote against him, I think, 
are doing so without the consideration of the high qualities this man 
offers, and without the recognition of the many Democrats who have 
written in favor of him. Many pro-choice Democrats have written in 
favor of him. If we are going to debate, we should debate the facts, 
not distortions of the facts. He has apologized and made amends. He 
asked forgiveness for some of his remarks that were insensitive.
  I hope around here we are not of the persuasion or opinion that 
everybody who comes to the Federal bench has to be perfect from the 
time they graduate from law school on, or even before

[[Page S7546]]

that, or because we differ with them on one or two positions that may 
be very important issues to one side or the other, they do not have a 
right to serve on the bench, or that there may be people of deeply held 
religious views who are unwilling to admit, because I think of some of 
the stereotypes around here, they can do a great job on the bench in 
spite of their religious views.
  In this particular case, this man is a very religious man who has 
made it more than clear that he will abide by the law even when he 
differs with it. This is a trial judge position. This is not the 
Supreme Court. But it is an important position, and I compliment my 
colleagues on both sides for scrutinizing all of these judgeships. But 
if they scrutinize fairly this man's record and what he has done, his 
reputation, his ability in the law, and his honesty and decency, then 
they are going to have to vote for him. If my colleagues do not do 
that, then I suppose they can vote against him. If they do so, they 
really have not looked at the record, have not been fair, and they have 
allowed buzz issues that have long since been answered to take a 
precedent position in the arguments that should not be permitted.
  Mr. LEAHY. Mr. President. I began this day calling for bipartisanship 
and civility in this Chamber. It seems that call has fallen on deaf 
ears with Republicans renewing their baseless charges that Democrats 
are anti-Catholic. Some Republicans keep recycling these reckless 
charges even though they are false. They do so in order to play wedge 
politics, the type of dirty politics preferred by the President's 
strategist Karl Rove. I have called on the White House to disavow these 
charges of religious bigotry. After all, President Bush ran for office 
claiming that he would change the tone in Washington and ``be a uniter, 
not a divider.'' His repeated actions to the contrary speak louder than 
his words. I have called on the Republican administration to disavow 
these anti-Catholic claims. Everyone knows that the President's 
father's counsel is pushing these false and partisan charges against 
Democrats. The White House has not stopped these charges. Its allies 
continue to throw this mud. It is beneath the dignity of this body.
  Anyone who reviewed the public submissions of the 197 judicial 
nominees of President Bush we have confirmed would see that many of 
these nominees have been active volunteers in their communities, 
including their parishes and other faith-based organizations. For 
example, the judges we have confirmed have been active members of their 
Diocesan Parish Council, the Friends of Cardinal Munich Seminary, the 
Altar and Rosary Society, the Knights of Columbus, the Archdiocese 
Catholic Foundation, Catholic Charities, the Archbishop's Community 
Relief Fund, the Catholic Metropolitan School Board, Serra Club, their 
Parish and Pastoral Councils, the Homebound Eucharistic Ministers 
Program, the St. Thomas More Catholic Lawyers Association, the John 
Carroll Society, the Guild of Catholic Lawyers, the Catholic League for 
Religious and Civil Rights, and the U.S. Catholic Conference, among 
other organizations. How dare Republicans come to this floor and claim 
that Democrats oppose Catholics or others active in their church when 
the public records of the 197 nominees confirmed absolutely refute 
these false and hurtful claims.
  I stand against the religious McCarthyism being used by some 
Republicans to smear Senators who dare to vote against this President's 
most extreme nominees for lifetime positions on the federal courts. We 
should come together to condemn their injection of religious smears 
into the judicial nomination process. Partisan political groups have 
used religious intolerance and bigotry to raise money and to punish and 
broadcast dishonest ads that falsely accuse Democratic Senators of 
being anti-Catholic. I cannot think of anything in my 29 years in the 
Senate that has angered me or upset me so much as this. Earlier this 
session I recall emerging from mass to learn that one of these 
advocates had been on C-SPAN at the same time that morning to brand me 
an anti-Christian bigot.
  As an American of Irish and Italian heritage, I remember my parents 
talking about days I thought were long past, when Irish Catholics were 
greeted with signs that told them they did not need apply for jobs. 
Italians were told that Americans did not want them or their religious 
ways. This is what my parents saw, and a time that they lived to see as 
long passed. And my parents, rest their souls, though this time was 
long past, because it was a horrible part of U.S. history, and it mocks 
the pain--the smears we see today mock the pain and injustice of what 
so many American Catholics went through at that time. These partisan 
hate groups rekindle that divisiveness by digging up past intolerances 
and breathing life into that shameful history, and they do it for 
short-term political gains. To raise the specter of religious 
intolerance in order to try to turn our independent federal courts into 
an arm of the Republican party is an outrage. They want to subvert the 
very constitutional process designed to protect all Americans from 
prejudice and injustice. It is shocking that they would cavalierly 
destroy the independence of our federal courts.

  It is sad, and it is an affront to the Senate as well as to so many, 
when we see senators sit silent when they are invited to disavow these 
abuses. Where are the fair-mined Republican Senators? Where are the 
voices of reason of moderate Members of this body? Do they agree with 
this wedge campaign by the more extreme elements in the Republican 
party to cause further divide in our nation along religious lines? What 
has silenced these Senators who otherwise have taken moderate and 
independent stands in the past? Are they so afraid of the White House 
that they would allow this religious McCarthyism to take place? Why are 
they allowing this to go on? The demagoguery, divisive and partisan 
politics being so cynically used by supporters of the President's most 
extreme judicial nominees needs to stop.
  These smears are lies, and like all lies they depend on the silence 
of others to live, and to gain root. It is time for the silence to end. 
The administration has to accept responsibility for the smear campaign; 
the process starts with the President. We would not see this stark 
divisiveness if the President would seek to unite, instead of to 
divide, the American people and the Senate with his choices for the 
Federal courts.
  And those senators who actively join in this kind of a religion 
smear; they may do it to chill debate on whether Mr. Holmes can be a 
fair and impartial judge, but they do far more. They hurt the whole 
country. They hurt Christians and non-Christians. They hurt believers 
and non-believers. They hurt all of us, because the Constitution 
requires judges to apply the law, not their political views, and 
instead they try to subvert the Constitution. And remember, all of us, 
no matter what our faith--and I am proud of mine--no matter what our 
faith, we are able to practice it, or none if we want, because of the 
Constitution. All of us ought to understand that the Constitution is 
there to protect us, and it is the protection of the Constitution that 
has seen this country evolve into a tolerant country. And those who 
would try to put it back, for short-term political gains, subvert the 
Constitution, and they damage the country.
  These baseless and outrageous claims harken back to dark days in our 
nation's history. I was just a young man growing up in Montpelier, VT 
when Senator Joseph McCarthy rose to power and ignomy as one of our 
country's worst demagogues through his spectacular brand of 
the politics of destruction. Senator McCarthy first claimed to a 
Republican Party club in West Virginia that he had a list of 205 known 
communists in the State Department. The next day, in Salt Lake City, he 
claimed he had a list of 57 ``card-carrying communists'' at the State 
Department. At other times he claimed there were 81. You see, the facts 
do not really matter to McCarthyists--so long as the claim is 
spectacular and causes voters alarm.

  I think many Americans believed because they could not imagine why 
someone would make such false allegations and smear the reputations of 
innocent people. That is the advantage of the demagogue, but we must be 
ever vigilant that such a lie does not become the truth through the 
alchemy of repetition.
  Shortly afterward his remarks in Utah, Senator McCarthy came to the 
floor of the Senate, this floor, and asserted that he had dossiers on 
federal

[[Page S7547]]

employees who were un-American, changing descriptions as he read them. 
For example where one person was described as ``liberal'' on paper, 
Senator McCarthy substituted the infammatory ``communistically 
inclined.'' That year, in 1950, a Senate Committee investigating 
Senator McCarthy's charges issued a report, known as the Tydings 
Committee Report after Maryland Senator Millard Tydings who chaired the 
subcommittee looking into the lies that were being spread. A critical 
piece of that report from 1950 has relevance today, more than 50 years 
later so I would like to quote a paragraph in full:

       At a time when American blood is again being shed to 
     preserve our dream of freedom, we are constrained fearlessly 
     and frankly to call the charges, and the methods employed to 
     give them ostensible validity, what they truly are: A fraud 
     and a hoax perpetrated on the Senate of the United States and 
     the American people. They represent perhaps the most 
     nefarious campaign of half-truths and untruth in the history 
     of the Republic. For the first time in our history, we have 
     seen the totalitarian technique of the ``big lie'' employed 
     on a sustained basis. The result has been to confuse and 
     divide the American people at a time when they should be 
     strong in their unity, to a degree far beyond the hopes of 
     the Communists whose stock in trade is confusion and 
     division. In such a disillusioning setting, we appreciate as 
     never before our Bill of Rights, a free press, and the 
     heritage of freedom that has made this Nation great.

  This quote is from the Report of the Committee on Foreign Relations 
pursuant to S. Res. 231, a resolution to investigate whether there are 
employees in the State Department disloyal to the United States, dated 
July 20, 1950.
  The Tydings Report also noted that ``few people, cognizant of the 
truth in even an elementary way, have, in the absence of political 
partisanship, placed any credence in the hit-and-run tactics of Senator 
McCarthy.'' Similarly, the Report sagely observed that ``the oft-
repeated and natural reaction of many good people . . . goes something 
like this--`Well there must be something to the charges, or a United 
States Senator would never have made them!' The simple truth now is 
apparent that a conclusion based on this premise, while normally true, 
is here erroneous. . . .'' Unfortunately, we face a similar situation 
today.
  It was not until 1954 that Senator McCarthy's deceitful campaign 
earned the censure of the full Senate for conduct unbecoming a Member 
of the Senate. I do remember that year when one of the greatest 
Senators of Vermont, Ralph Flanders, stood up on this floor, even 
though he was a Republican, sort of the quintessential Republican and 
condemned the tactics of Joe McCarthy on several occasions.
  For example, on June 1, 1954, Senator Flanders renewed his deep 
concerns about the allegations of Senator McCarthy and made some 
observations that are particularly relevant, unfortunately, to the 
recnt religious smear of Republicans in 2003. He noted how Senator 
McCarthy's political agenda involved sowing division and fear among 
people of different faiths--Jews, Protestants, and Catholics. After 
instilling fear in Jewish Americans, McCarthyists ``charged the 
Protestant ministry with being, in effect, the center of Communist 
influence in this country.'' As Senator Flanders observed, ``the ghost 
of religious intolerance was not laid'' by the departure of a few close 
allies of Senator McCarthy who had been rebuked for attacking a 
majority faith in this country. As Senator Flanders noted, ``Clearer 
and clearer evidence of the danger of setting church against church, 
Catholic against Protestant. . . . [Senator McCarthy's] success in 
dividing his country and his church'' was paralleled only by his 
divisiveness to the Republican party.
  Later that summer, Senator Flanders offered resolution of censure 
condemning the conduct of Senator McCarthy, who had smeared so many 
innocent people with his false claims and treated some of his 
colleagues in this body with contempt in his zeal. He noted Senator 
McCarthy's penchant for breaking rules, ``The Senator [McCarthy] can 
break rules faster than we can make them.'' When the Senate considered 
the matter, it censured Senator McCarthy, and rightly so.
  History properly condemns him and his cohorts, even though it has 
become fashionable for right-wing extremists such as Ann Coulter to 
attempt to rewrite history and call him a brave hero who saved America. 
The fact is that our Nation and Constitution are lucky to have survived 
his divisive, destructive and manipulative tactics which were then and 
remain, the words of Senator Flanders, a blot on the reputation of the 
Senate. He was a ruthless political opportunist who exploited his 
position of power in the Senate to smear hundreds of innocent people 
and win headlines and followers with his false assertions and innuendo, 
without regard to facts, evidence, rules and human decency.
  Senator Flanders of Vermont stood up and fearlessly condemned what 
Joseph McCarthy was doing. And it stopped. I hope some will stand up 
and condemn these McCarthyist charges of anti-Catholic bigotry leveled 
at Catholics and others who are members of he Senate Judiciary 
Committee and Members of this Senate.
  The reality is that not one of the Democratic Senators in Committee 
who voted against Mr. Holmes did so because he is Catholic. Half of the 
Democratic Members of the Judiciary Committee are Catholic. We would 
not vote for him or vote against him because of his religious 
affiliation. What we cared about was Mr. Holmes long history of 
statements that he himself admits have been inflammatory and 
unfortunate. Among the many concerns are his statements that the 
Constitution, our Constitution, is not meant for people of different 
views. His intolerance of the views of others is manifest in numerous 
statements he has made. His insensitivity to rights of others is also 
apparent, no matter how polite a person he may be.

  His statements against efforts to implement the Supreme Court's 
decision in Brown v. Board of Education, his opposition to Federal law 
intended to restore basic civil rights rules that had been modified by 
conservative activist judges, his denigration of political rights for 
African Americans, his active work to limit people exercising their 
right to vote or to have their vote counted, and his screeds against 
women's rights are just too much to overlook. The President has marked 
the anniversary of the landmark Civil Rights Act of 1964 with public 
speeches while below the radar screen he has put forward nominee after 
nominee with records of hostility toward civil rights, toward women's 
rights, toward environmental protections, and toward human rights. This 
President knows what he is looking for in the legacy he wants to leave 
with the lifetime appointees he has put forward. He has nominated more 
people active in the Federalist Society, such as Leon Holmes, than 
African Americans, Latinos or Asians combined. He is more committed to 
ideological purity than to diversity or full enforcement of civil 
rights.
  President Bush has claimed that he wants judges who will interpret 
the law and not make the law, but in the aftermath of the 
administration's re-interpretation of the laws against torture that 
assurance is meaningless. Just look at the torture memo written by Jay 
Bybee, who was confirmed for a lifetime seat on the Ninth Circuit after 
stonewalling the Senate on his legal work and views. It is not fair to 
the American people that this President's judicial nominees be given 
the benefit of the doubt. Here, in Leon Holmes, we have a nominee whose 
views are well known. There is little doubt what kind of activist judge 
he was chosen to be and will be if confirmed.
  Senator Hatch has claimed that asking about whether a nominee will 
follow Supreme Court precedent on privacy and choice is out of bounds 
because in his view ``the great majority of people who are pro-life 
come to their positions as a result of their religious convictions. We 
hold this view as a religious tenet, and this is part and parcel of who 
we are.'' Under Senator Hatch's view that it is improper to ask 
judicial nominees about their view of legal issues that may also relate 
somehow to a religious position. I ask, however, would it be wrong for 
the Senate to ask a nominee for a lifetime position for their views on 
racial discrimination? Of course that would be absurd and an abdication 
of our responsibility to serve as a check on the nominees put forward 
by this or any President. As Senator Durbin has mentioned based on the 
tragic shootings instigated by the racist World Church of the

[[Page S7548]]

Creator in Illinois, it would be irresponsible for the Senate in its 
advice-and-consent role to ignore, for example, questions of racial 
discrimination if those views can be cloaked in religious garb.
  The Senate has considered the views of nominees since the beginning 
of our Nation, when Justice John Rutledge's nomination to be Chief 
Justice of the Supreme Court was rejected for a speech he gave 
expressing his views on a treaty. To assert suddenly that although 
President Bush and his advisors can consider a judicial candidate's 
views, such as on race or choice, the Senate is forbidden from doing so 
is a terrible manipulation of the process. The Constitution gives the 
Senate an equal role in the decision about who serves on the Federal 
courts, not a lesser rule and certainly not that of a rubber stamp. 
With these religious assertions, Republicans may think that they have 
found a loophole to avoid public questions to and answers by their 
hand-picked judicial nominees about their views that both Democrats and 
Republicans actually consider to be significant areas of law. Support 
for protecting racial discrimination should be allowed no loophole from 
scrutiny. A nominee's beliefs and views about constitutional rights 
should not be hidden from public view until after a nominee is 
confirmed to a lifetime seat on the bench.

  The truth is that Mr. Holmes' affiliation with the Catholic Church 
neither disqualifies him nor qualifies him for the Federal bench. And 
this is how it should be, how it must be, under our Constitution. Mr. 
Holmes' record is what causes grave concerns. He has been active and 
outspoken with rigid and radical views about the meaning of the 
Constitution, the role of the Federal Government, equality rights and 
other liberties.
  Republicans have falsely claimed that Democrats have an anti-Catholic 
bias because we oppose the nomination of Leon Holmes for a lifetime job 
as a Federal judge. The opposition to Mr. Holmes is not based on his 
religious affiliation. No matter his faith, Mr. Holmes' record does not 
demonstrate that he will be fair to all people on most legal issues 
that affect the rights of all Americans. Mr. Holmes' religious 
affiliation is irrelevant to these serious matters of concern about 
whether he would be a fair judge. He has no meaningful judicial 
experience that would demonstrate his ability to set aside his views 
and apply the law fairly. To suggest otherwise is low and base.
  It is also untrue to claim that Democrats have a pro-choice litmus 
test. Many of the 197 judicial nominees of President Bush have been 
active in pro-life issues or organizations according to the public 
record, and most have been confirmed unanimously, such as Ron Clark, a 
pro-life former Texas State legislator, Ralph Erickson, who was active 
in pro-life groups in North Dakota, Kurt Englehardt, a former pro-life 
leader in Louisiana, and Joe Heaton, a pro-life former Oklahoma 
legislator. The public record shows that it is obviously false to claim 
that Democrats have employed a pro-choice or anti-Catholic litmus test 
in voting on judicial nominees.
  Why anyone would tell such lies, claiming that Democrats are anti-
Catholic or anti-pro-life, and sow such seeds of division and hate. 
Why, as Senator Tydings asked in regard to McCarthy, why would anyone 
on the floor of the Senate or in a committee or in a hallway press 
conference in the Capitol or anywhere make such charges if there were 
not something to them? Conservative columnist Byron York noted that 
Republicans are working closely with some organizations to press the 
debate: `` `The issue is playing very well in the Catholic press and in 
Catholic e-mail alerts,' the [unnamed] Republican says. `You tap into 
an entire community that has its own press, its own e-mail systems, and 
that has been tenderized by anti-Catholicism, which they consider to be 
the last permissible bias in America.' '' This religious McCarthyism of 
Republican partisans is bad for the Senate. It is bad for the courts. 
And it is bad for the country.
  Mr. President, I suggest the absence of a quorum and ask that the 
time be divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I come to the floor to share my views 
on this nominee to the Federal district court. I heard our 
distinguished chairman, a man who I greatly respect and admire, mention 
he was recommended as well qualified by the American Bar Association, 
and that he in fact could distance himself from his personal beliefs; 
that he is a deeply religious man, and the chairman believed he would 
be able to truly distance himself.
  I have a very hard time believing that. If I look at his personal 
beliefs, they are extraordinary and they are way out of line with the 
mainstream of American thinking. I want to comment a little bit about 
them. They are not only outside the mainstream of American thinking, 
but they are outside the mainstream of American judicial thought as 
well.
  Mr. Holmes has no real judicial experience. That is what makes it 
difficult, because there is no way we know whether he can distance 
himself from many of the comments he has made over many years. He is a 
native of Arkansas. He is a practicing lawyer at a law firm. He has 
done some teaching at the University of Arkansas and at the Thomas 
Aquinas College in my State: California.
  With the exception of two instances where he served as a special 
judge on the Arkansas Supreme Court, he has no judicial experience. But 
that is not my main objection. My main objection is over the past 24 
years he has put forward in word and writing philosophies that are far 
from U.S. mainstream opinion on a whole series of subjects, from 
women's rights, to choice, to race, and to the separation of church and 
state. These statements make him a very troubling nominee, and I have 
never--again, never--before voted ``no'' on a nominee to the district 
court. This is my first ``no'' vote in the 12 years I have been on the 
Judiciary Committee.
  Let me give you a few examples. Let me take a subject, women's 
rights. Seven years ago--it is not too long ago--seven years ago he 
wrote:

       ``The wife is to subordinate herself to her husband,'' and 
     that ``the woman is to place herself under the authority of 
     the man.''

  This belief, if sustained, clearly places this nominee in a place 
apart. But this is not merely my own view, it is the view of the equal 
protection clause of the 14th Amendment of the Constitution, which I 
would hope any Federal judge would uphold.
  It is also the view of numerous Federal civil rights laws, including 
the Civil Rights Act of 1964, for which the Nation celebrated its 40th 
anniversary on July 2. How can I or any other American believe that one 
who truly believes a woman is subordinate to her spouse can interpret 
the Constitution fairly? When women are parties to claims of job 
discrimination, sexual harassment, domestic violence, and a host of 
other issues involving the role of women in society, how can I be 
assured they can get a fair hearing from Leon Holmes? What will a 
plaintiff think when she finds out the judge hearing her case thinks 
women should subordinate themselves to men?
  That is a fairly crisp view. It is a view I have not seen presented, 
certainly in the last 20 years, in any serious way.
  Let's take a woman's right to choose. Again and again over decades, 
Mr. Holmes has made comments that show he is solidly opposed to a 
woman's right to choose, even in the case of rape. Let me give an 
example.
  In a letter that he wrote to the Moline Daily Dispatch--this is a 
letter he writes to a newspaper--Mr. Holmes called rape victims who 
become pregnant ``trivialities.''
  How is a rape victim ever a triviality?
  He wrote in that same letter that ``concern for rape victims is a red 
herring because conceptions from rape occur with approximately the same 
frequency as snowfall in Miami.''
  That might be a cute phrase but, in fact, it is grossly incorrect. 
Snow falls in Miami about once every 100 years, but, according to the 
American Journal of Obstetrics and Gynecology, each

[[Page S7549]]

year in America over 30,000 women become pregnant as a result of rape 
or incest. This is hardly a trivial matter.
  Mr. Holmes' letter wasn't a one-time comment. I can excuse a lot of 
one-time comments. I understand how they happen. I understand how they 
can be taken out of context. But he has also been an opponent of a 
woman's right to choose for decades. Other comments he has made on the 
very sensitive issue of abortion are equally insensitive. For example, 
he said:

       I think the abortion issue is the simplest issue this 
     country has faced since slavery was made unconstitutional, 
     and it deserves the same response.

  In other words, end it. It is a very precise point of view.
  Mr. Holmes has stated:

       The pro-abortionists counsel us to respond to these 
     problems by abandoning what little morality our society still 
     recognizes. This was attempted by one highly sophisticated, 
     historically Christian nation in our history--Nazi Germany.

  In a 1987 article written to the Arkansas Democrat, Mr. Holmes wrote:

       [T]he basic purpose of government is to prevent the killing 
     of innocent people, so the government has an obligation to 
     stop abortion.

  Seven years later, in a 1995 interview, with the Arkansas Democrat 
Gazette, Mr. Holmes stated:

       I would like to appear before the Supreme Court of the 
     United States, and I would like to have argued Roe v. Wade.

  In response to Senator Durbin's written question asking what Supreme 
Court cases Mr. Holmes disagrees with, he answered: Dred Scott v. 
Sanford, Buck v. Bell, and Roe v. Wade.
  Dred Scott held that blacks were not people under the Constitution. 
As you know, Buck v. Bell held that a woman could be sterilized against 
her will. Those cases were abominations.
  To include Roe v. Wade with these two decisions clearly indicates 
that he holds Roe as a decision to be abolished. This is simply not a 
mainstream perspective.
  These comments don't sound as if they come from a man with an open 
mind about a most sensitive issue. Rather, they sound as if they come 
from a man with an agenda to eliminate the constitutional rights of 
American women to choose.
  That is a problem for me because I don't believe someone who has 
these views can fairly hand out justice. I don't believe such a person 
should be a Federal judge for the rest of his life.
  Mr. Holmes is not merely opposed to a woman's constitutionally 
protected right to choose. He has also lashed out at contraception, 
against women generally, and against the rights of gays and lesbians. 
He wrote in 1997:

       It is not coincidental that the feminist movement brought 
     with it artificial contraception and abortion on demand, with 
     recognition of homosexual liaisons soon to follow.

  That is emotion-laden language. It is offensive to a whole host of a 
number of people. It is extraordinary language. It certainly is not a 
line of thinking with which I can agree. These are all areas where the 
Federal courts play a vital role.
  He has also made some shocking statements about race in America. 
Specifically, in a 1981 article, he wrote for a journal called 
Christianity Today about Booker T. Washington. This is what he wrote:

       He taught that God had placed the Negro in America so it 
     could teach the white race by example what it means to be 
     Christlike. Moreover, he believed that God could use the 
     Negroes' situation to uplift the white race spiritually.

  Mr. Holmes first wrote those words 23 years ago. But he still stands 
by them. In April of last year, Leon Holmes wrote to Senator Lincoln:

       My article combines [Washington's] view of providence--that 
     God brings good out of evil--with his view that we are all 
     called to love one another. This teaching can be criticized 
     only if it is misunderstood.

  Are these the words of a man who should be confirmed to interpret the 
equal protection clause of our Constitution without prejudice, to 
interpret the due process clause, to interpret Federal civil rights 
statutes?
  In my view, Mr. Holmes' statements also indicate that he can't 
separate his own religious views from the Federal law he will be 
charged with interpreting. This is a trait that is particularly 
dangerous, given the strong views he has taken.
  On religion, in a speech he delivered 2 years ago in Anne Arbor, MI, 
he stated:

       Christianity, unlike the pagan religions, transcends the 
     political order.

  That is really food for thought.
  He continues:

       Christianity, in principle, cannot accept subordination to 
     the political authorities, for the end to which it directs 
     men is higher than the end of the political order; the source 
     of its authority is higher than the political authority.

  I guess one could say that all depends on what he means by the 
political order. The political order produces the law and the court 
interprets the law.
  If he is saying the political order which produces the law is 
subservient to Christianity, how can we feel this is going to be an 
open-minded judge?
  He also stated in the same speech that he was ``left with some unease 
about this notion that Christianity and the political order should be 
assigned to separate spheres, in part because it seems unavoidably 
ambiguous.''
  I have no desire to cause Mr. Holmes any additional ``unease.'' But 
if he is confirmed today, that is what he will have, whenever a 
question about the separation of church and state comes before him. The 
First Amendment in reality is not ``ambiguous.'' It clearly states that 
there shall be ``no law respecting an establishment of religion.''
  My concerns go further than First Amendment cases. If Mr. Holmes 
becomes a U.S. district court judge, how can we be sure he will 
separate his faith from the law? How will the parties before him know 
he is basing his rulings on the U.S. Constitution rather than on his 
spiritual faith?
  This is not a statement on belief. I respect Mr. Holmes' right to his 
own faith, and I generally believe that a strong and abiding faith is a 
positive, not a negative, factor in reviewing an individual for public 
service. But here, where a nominee has himself said that faith must 
trump the law, it would be troubling at best to grant that nominee a 
lifetime seat on a Federal bench where law must trump all else, if our 
system of justice is to work.
  Mr. Holmes' disconcerting views about the Constitution go beyond what 
he thinks about a particular area of law. He has expressed support for 
the concept of natural law, which holds there are laws that trump the 
law of the Constitution.

  Natural law, simply put, holds that the Constitution is not the 
supreme law of the land. Rather, those who believe in natural law would 
subordinate the Constitution to some higher law. This concept is 
starkly at odds with the role of a Federal judge, who must swear to 
uphold the Constitution. But Mr. Holmes says that natural law trumps, 
as I understand it, the Constitution which he takes an oath to uphold.
  In an article three years ago, in 2001, he wrote:

       [T]he Constitution was intended to reflect the principles 
     of natural law.

  In response to a written question from Senator Durbin, Mr. Holmes 
wrote:

       [M]y view of natural rights derives from the Declaration of 
     Independence.

  Now the Declaration of Independence, which all Americans joyfully 
celebrated this past weekend, is the source of our Nation's liberation. 
The Constitution is the source of our Government and our laws. So they 
are separate and distinct from one another. This is a critical 
distinction, and I am not sure Mr. Holmes appreciates that. If he reads 
natural law into the Constitution, then he is not reading the same 
Constitution as the rest of America.
  There is one final issue I would like to address. At the end of last 
month, on June 24, we confirmed six judges in a single day. Since the 
accommodation of the White House, the Senate has confirmed 24 of the 25 
judges to which we agreed to proceed to floor votes. We have confirmed 
28 nominations this year alone, including 5 circuit court nominations. 
And the Senate has confirmed 197 judges since President Bush was 
elected as our President.
  I have always maintained my own counsel when it comes to the 
confirmation of judicial nominees. I do not use my blue slip. I do not 
make a decision until after the individual has a hearing and generally 
until after he or she has answered the written questions. I have always 
tried to see the potential for

[[Page S7550]]

good in the nominees who come to us. When the President nominates a 
person to the Senate, it is my feeling we should do everything we can 
to respect the President's choices, while still taking with the utmost 
seriousness our own constitutional obligation to advise and consent.
  To that end, as I said before, I have never before opposed a nominee 
to a U.S. district court. I have also supported nominees to the Court 
of Federal Claims--Susan Braden, Charles Lettow, and Victor Wolski--
whom other Democrats opposed.
  Even at the level of the U.S. Court of Appeals, I have supported 
nominees whom others have opposed. I supported the nomination of 
Jeffrey Sutton to the Sixth Circuit, and I was the only Democrat on the 
Judiciary Committee to do so. I supported the nomination of John 
Roberts to the DC Circuit, even though three Democrats on the Judiciary 
Committee opposed him. I supported the nomination of Deborah Cook, also 
to the Sixth Circuit, when many of my colleagues voted against her.
  In all of these instances, I had confidence the nominees would 
interpret the Constitution and the Nation's laws fairly and without 
bias. And that is all I ask. I would expect these nominees to be 
conservative, and that is not a problem, as long as their views are not 
contrary to what a majority of Americans believe and the judicial 
thinking of a majority of mainstream judges. But I do not feel that way 
about Mr. Holmes.
  I have no doubt he is a man of deep and sincere beliefs, and in this 
great Nation he is entitled to those beliefs. I commend him for his 
faith. But how can I entrust protection of separation of church and 
state, protection of the civil rights laws, protection of a woman's 
right to choose--all of the major values which come before a Federal 
court judge--with the comments he has made? Because these comments are 
robustly extraordinary. I would never dream of these comments being 
made by someone who aspires to be on a Federal court of law. And if you 
have no judicial experience by which to evaluate whether he can in fact 
separate himself from his views, it is a very difficult nomination to 
swallow.

  As a woman, how can I possibly vote for someone to go on to a Federal 
district court who believes women should be subordinate to men, when 
that judge is going to have to look at employment discrimination, 
sexual harassment cases, who in the modern day and age, as a practical 
tenet of public thinking, believes--and believes strongly enough to 
write about it and say it to the world--that women should be 
subordinate to men and a wife should be subordinate to her husband, and 
expect any woman who comes before that judge is going to have fair and 
even treatment?
  For over 20 years, Mr. Holmes has been making extremist statements on 
women, on race, on abortion, on the role of religion in society. His 
statements in each individual area, as I have said, are startling. 
Taken together, he has given us more than enough reason to fear he will 
continue to make radical statements when his words have the force of 
law. And that is a risk I, for one, do not want to take.
  So I urge my colleagues today to join me in opposing this 
confirmation and voting no. It will be my first one in 12 years.
  I yield the floor.
  Mr. SESSIONS. Mr. President, I believe the Senator from New Mexico is 
to be next.
  Mr. DOMENICI. Mr. President, I inquire, how much time does the 
Senator have remaining on the subject matter at hand?
  The PRESIDING OFFICER. The Senator from Alabama has 83\1/2\ minutes, 
almost 84 minutes, under his control; and the opposition has about 
31\1/2\ minutes.
  Mr. DOMENICI. Mr. President, I ask the Senator if he will yield me up 
to 10 minutes.
  Mr. SESSIONS. Mr. President, I am delighted to yield the Senator from 
New Mexico up to 10 minutes.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I ask unanimous consent that I be 
permitted to speak for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Domenici are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I yield myself up to 10 minutes off 
the side of Senator Leahy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. Mr. President, I rise to discuss Leon Holmes' 
nomination to the bench of the U.S. District Court for the Eastern 
District of Arkansas. Article II, section 2 of the Constitution imposes 
profound responsibility on the U.S. Senate to advise and consent on 
appointments of individuals to lifetime positions.
  I rarely voted against a judicial nominee or even opposed one under 
President Clinton. I have never opposed one under President Bush. On 
the rare occasion when I did oppose a judicial candidate, it was 
because a nominee had failed to show proper judicial temperament, or if 
questions about judicial philosophy arose, and there was no judicial 
record on which to base a vote of confidence.
  I take very seriously the responsibility of confirming an individual 
for a lifetime appointment. These Federal judges do not answer to 
anyone after they take office. So when someone's views raise a question 
or concern and there is no record as a judge to show he or she can set 
personal views aside, I believe caution is warranted. For my vote, such 
is the case with Leon Holmes.
  Dr. Holmes is a gifted man and a capable attorney. He has had a 
strong career and demonstrated commitment to his community. His rich 
spiritual conviction and work ethic are traits for which he is 
commended. I have listened to Dr. Holmes' supporters. I read statements 
in support of his candidacy presented by the Department of Justice. I 
know his distinguished career. I have read carefully his writings and 
public statements, including those for which he has subsequently 
clarified or apologized. I met Dr. Holmes to talk about his nomination.
  Mr. President, we have made mistakes like this in the past. Last 
month a judge on the Second U.S. Circuit Court of Appeals, a judge who 
was confirmed unanimously by the Senate in 1994 with my vote, made a 
disturbing public speech. In it, he compared President Bush's election 
in 2000 to the rise of power of Mussolini. The judge has, of course, 
apologized. We have all made remarks we wish we had not made. But in 
this case, coming from a judge, the blatant partisanship and political 
bias revealed by this remark, reduced the value of the subsequent 
apology. Now, it is a fair question, if a Republican-oriented litigant 
comes to the Second Circuit, can he or she be assured of an impartial 
justice by that judge?
  In 1980, Leon Holmes wrote:

       The concern for rape victims is a red herring because 
     conceptions from rape occur with approximately the same 
     frequency as snowfall in Miami.

  I differ with him absolutely on this issue.
  If one rape victim is pregnant, she deserves protections and rights. 
She is a victim our society must acknowledge. What of the 14-year-old 
pregnant girl--a victim of incest from her father? Should she be cast 
aside as inconsequential? If you talk to any person who has served on a 
grand jury, in any urban area of our country, they have seen such a 
case. It happens. Thousands of rape victims in our country become 
pregnant every year. The Houston Chronicle recently reported that the 
American Journal of Preventive Medicine estimates 25,000 rape-related 
pregnancies occur annually. Are these victims to be ignored by our laws 
and society?
  To his credit, Dr. Holmes has acknowledged that these comments were 
insensitive, but in conjunction with his other writings, that isn't 
enough for a lifetime appointment to a federal judgeship.
  My vote will not be in any way related to his views on abortion or 
his personal religious beliefs. It is based on his body of statements 
over a 25-year period that lead me to conclude he does not have a 
fundamental commitment to the total equality of women in our society.
  I have supported all of President Bush's previous nominees. In each 
instance, if there has been a controversy, I have tried to make an 
independent judgment without employing a litmus

[[Page S7551]]

test, and without employing my own discrimination based on the 
nominee's personal practices or ideologies. In each case, I felt the 
candidate met the requirements. But I have a constitutional role that I 
must, in good conscience, uphold as I see it. I believe in the 
overwhelming majority of cases, the President should be granted his 
appointments to the bench. The role given to the Senate was to allow 
all possible information about a nominee to come forward to assure that 
a person is fit. Personally, I doubt that the writings of this nominee 
were known to the Administration when the appointment was made. But 
since his statements have come to the attention of the Senate, we must 
use our judgment about the overall ability of this nominee to give 
impartial justice in all cases.
  I conclude that I cannot provide my consent for Leon Holmes.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I want to share some thoughts about the 
Holmes nomination. I feel very deeply about it. I respect so much my 
friend, the Senator from Texas, and her service in this body. I will 
say that she and I have talked about it before. I think we are missing 
something here. I urge her to reconsider the position she has taken, 
although I know she has taken it carefully and I doubt that is likely. 
But I urge her and others to consider what we are doing here, about how 
we vote on judges.
  Let me just say that Americans and people around the world have 
various beliefs, and to some people different beliefs are viewed as 
strange. Those with religious beliefs may have different views on some 
issues than those who don't have religious beliefs. There is quite a 
lot of that. We don't all agree. We have different views about whether 
there is a Trinity, or what do you think about the virgin birth, and 
issues of all kinds. We have a lot of differences of opinion.
  We have a view in this country that there cannot be a religious test 
for a judge or any other position in Government. There cannot be a 
religious test that you can put on them, saying you have to have a 
certain religion or certain belief before you can be an official in 
this Government. No, that is not true. We should not do that.
  I guess what I will first say--and I hope I can be clear about this--
we differ in our religious principles. It has been suggested that Mr. 
Holmes' religious principles are extreme. I say to you that his 
principles are consistent with the Catholic Church's principles. What 
he has said in every writing I have seen, and as I understand it, they 
are perfectly consistent--in fact, he defended classic Catholic 
doctrine. He defended classic Catholic doctrine. Regardless of whether 
he had a personal view that was somewhat unusual about his religious 
faith, that is not the test we have here. The question is, Will his 
personal religious beliefs he may adhere to strongly interfere with his 
ability to be a good judge?
  He and his wife wrote a letter to a church in a church newspaper to 
discuss how they have ordered their marriage, and they have ordered it 
in the classical terms of Christianity. As a matter of fact, I think 
the Baptist Church recently affirmed a similar position in their 
denomination. It is the second largest denomination in the U.S.--second 
to the Catholic Church. That is not an extreme view. Whether you agree 
with it, it is scriptural, it is Christian doctrine. He defended and 
explained and wrote about that.
  Isn't it good that we have a nominee for the Federal bench who is 
active in his church, who thinks about the issues facing his country 
and writes about them and talks about them? That is a healthy thing. 
The question is--and it is legitimate for those who are concerned about 
those views--if they don't agree with his view on abortion or on how 
marriage is arranged, to inquire of the nominee whether those views are 
so strong they would affect his or her opinions from the bench. That is 
the test. If we get away from that, we have a problem.
  What is going to happen when we have a Muslim who has been nominated 
here or an Orthodox Jew, or any other denomination that doesn't agree 
with us on religious beliefs? Are we going to demand that they come 
before the Senate Judiciary Committee and renounce their faith as a 
price to be paid before they can be a Federal judge? No, sir, that is 
wrong. This is big-time stuff; this is not a little iddy-biddy matter, 
Mr. President. We should not be in that position. Yes, inquire if the 
person's views are so strongly held that they would impair his ability 
to be a Federal judge. Yes, ask whether they are a good lawyer, or do 
they have a good reputation among the bar, or do people respect their 
integrity, do they have good judgment, do people like and admire them. 
Ask those things. Ask whether the person has lack of judgment. But 
don't say: I don't agree with your theology on marriage; I don't agree 
with your church's view on abortion; therefore, I am not going to vote 
for you. That is a dangerous thing. It should not be done. It is a 
mistake for us to head down that direction. I cannot emphasize that too 
much.
  This is wrong. We should not do this. It is not the right way to 
evaluate Federal judges. I understand when somebody says: I just feel 
strongly about this deal on marriage that he and his wife wrote. I 
feel, feel, feel. We need to stop thinking like that and not be so much 
worried about how we feel, and we better think about the consequences 
of our actions and our votes.
  This is a dangerous precedent. I respect Judge Holmes. He is a man 
who has reached out to the poor, helped women lawyers to an 
extraordinary degree, helped them become partners in his firm. He has a 
wonderful wife who respects him and defended him in a real hot letter 
in response to the criticism of the article that she and Judge Holmes 
wrote. I think we ought to look at that.
  We have confirmed people to the bench that have made big mistakes in 
my judgement--we have confirmed people to the bench that have used 
drugs, yet, we are now debating keeping this man off the bench for his 
religious writings. Would Mr. Holmes be in a better position with 
members of this body if he had smoked dope instead of written religious 
articles? That should not be so.
  Let's look at his basic background and reputation for excellence. Of 
course, we know the two Democratic Senators from his home State of 
Arkansas support his nomination. So he has home State support.
  We know the American Bar Association rated him their highest rating, 
``well-qualified.''
  We know he is probably the finest appellate lawyer in the State of 
Arkansas.
  We know the Arkansas Supreme Court, when at various times they need a 
lawyer to sit on that court, they have called him two or three times to 
sit on the court.
  He is one of the most respected lawyers in the State of Arkansas.
  He was Phi Beta Kappa at Duke University. I think he was No. 1 in his 
class in law school.
  This is a man of integrity, of religious faith and conviction, who is 
active in his church, who has reached out to the poor all his life, 
tried to do the right thing, and he is the one who comes up here and 
gets beaten up.
  This is what his hometown newspaper, the Arkansas Democrat Gazette, 
said. These are the kinds of comments from the people who know him:

       What distinguishes Mr. Holmes is a rare blend of qualities 
     he brings to the law--intellect, scholarship, conviction, 
     detachment, a reverence not just for the law but for ideas, 
     for the life of the mind. All of that would shine through the 
     clutter of argument that awaits any judge. He would not only 
     bring distinction to the bench, but promise. In choosing Leon 
     Holmes, the President could bequeath a promise of greatness.

  I think that is high praise. That is a beautiful comment. I suggest 
that is something anyone would be proud to have said about them.
  He has practiced commercial litigation at the trial and appellate 
level in State and Federal courts. He has acquired significant 
courtroom experience. He is currently a partner at Quattlebaum, Grooms, 
Tull & Burrow in Little Rock. He was rated ``well-qualified'' by the 
ABA.
  He knows the value of hard work. He came from humble roots and is the 
only one of his seven siblings to attend college. He worked his way 
through college, finished law school at night while working a full-time 
job to support his family.

[[Page S7552]]

  He is an accomplished scholar. As I said, he finished at the top of 
his class, was inducted into Phi Beta Kappa while a doctoral student at 
Duke University. He was named outstanding political science student 
upon graduation from the college. That is pretty good. Duke University 
is a pretty fine university.
  During the academic years of 1990 to 1992, he taught a variety of 
courses at Thomas Aquinas College in California. He taught law at the 
University of Arkansas during the year he clerked for Justice Holt of 
the Arkansas Supreme Court. One does not get selected to be a law clerk 
for a supreme court judge if one is not good. He displayed wide-ranging 
academic interest. His doctoral dissertation discussed the political 
philosophies of W.E.B. Debois and Booker T. Washington. It analyzed the 
efforts of Martin Luther King, Jr., and has made efforts to reconcile 
their views. He has written substantial essays dealing with the 
subjects of political philosophy, law, and theology. He has been active 
in the bar in Arkansas. He taught continuing legal education courses on 
numerous occasions. He has been awarded the State bar's best CLE award 
four times. He sits on the board of advisers of the Arkansas Bar 
Association. He chaired the editorial board for the bar's education for 
handling appeals in Arkansas.

  That is pretty good. The Arkansas Bar does a publication on how to 
handle appeals in Arkansas. He was chosen to chair the editorial board 
for that publication. I submit to my colleagues that his peers think he 
is a good lawyer.
  He sits on the judicial nominations committee for the Arkansas State 
courts which recommends attorneys to the Governor for judicial 
appointment in supreme court cases where one or more justices recuse 
themselves. He is one of a top handful of appellate lawyers in 
Arkansas, and in 2001, the Arkansas Bar Association bestowed its 
writing excellence award on Mr. Holmes.
  On two occasions Leon Holmes has been appointed to serve as a special 
Arkansas Supreme Court judge, which is a real honor for a practicing 
attorney. The judges have praised his service in those cases, and more 
than one has urged him to run for a seat on the Arkansas Supreme Court. 
So he is well respected by the plaintiffs bar in Arkansas.
  Mr. Holmes is currently defending on appeal the largest jury verdict 
ever awarded in Arkansas history. It is the case of a nursing home 
resident who allegedly died from neglect. He is representing the 
plaintiffs side on appeal.
  If you are a plaintiff lawyer and you won in trial the largest civil 
judgment in Arkansas history, and it is on appeal and you want a lawyer 
to represent you, you want the best lawyer you can get, and you have 
the money to get that lawyer, you have a verdict worth millions, 
probably hundreds of millions of dollars--I do not know. Who did they 
choose out of the whole State of Arkansas? Leon Holmes. What does that 
say? They put their money on him. Their case was put on his shoulders.
  Look, he has given back to the community. This is not a man who is 
selfish as a practicing lawyer just to see how much money he can make. 
He was a habeas counsel for death row inmate Ricky Ray Rector, the 
mentally retarded man who was attempting to avoid execution. It came 
before then-Arkansas Governor Bill Clinton. He refused at that time to 
commute the death sentence. But Holmes helped prepare the case for the 
evidentiary hearing in Federal court after habeas had already been 
filed.
  Not many big-time civil lawyers give their time to represent poor 
people, or mentally retarded people on death row. Holmes represented a 
Laotian immigrant woman suffering from terminal liver disease when 
Medicaid refused to cover treatment for a liver transplant. Do my 
colleagues think he made a bunch of money off that case? He did it 
because he thought it was the right thing to do. He helps people who 
are weak and do not have fair access to the courts.
  He represented a woman who lost custody of her children to her ex-
husband, who could not afford counsel on appeal. He represented an 
indigent man with a methamphetamine felony history in connection with 
traffic misdemeanors.
  He has given back to his community outside the law, also. He was a 
house parent for the Elan Home for Children while a graduate student in 
North Carolina. He served as director of the Florence Critten Home of 
Little Rock, helping young women cope with pregnancy.
  He is partner with Philip Anderson, a former president of the 
American Bar Association who does not share Judge Holmes' views on a 
lot of issues politically, but he strongly supports him as an excellent 
judge, as do a large number of women.
  Let me read some of the people who know him. This is what his history 
shows. Some say, well, we do not know. He has these religious beliefs. 
What do we know about him in practice? Will he get on the bench and do 
all of these horrible things? It is not his record to do that kind of 
thing.
  Female colleagues from the Arkansas bar who know him support him 
strongly. This is what one said:

       During my 7 years at Williams & Anderson, I worked very 
     close with Leon. We were in contact on a daily basis and 
     handled many cases together. I toiled many long hours under 
     stressful circumstances with Leon and always found him to be 
     respectful, courteous and supportive. I was the first female 
     associate to be named as a partner at Williams & Anderson. 
     Leon was a strong proponent of my election to the partnership 
     and, subsequently, encouraged and supported my career 
     advancement, as well as the advancement of other women within 
     the firm.

  So they say, well, he and his wife wrote this article quoting St. 
Paul and we think he does not like women. What about him being a strong 
supporter of this woman being the first female partner at his law firm?
  Continuing to quote from the letter:

     . . . Leon treated me in an equitable and respectful manner. 
     I always have found him to be supportive of my career . . . 
     Leon and I have different political views; however, I know 
     him to be a fair and just person and have complete trust in 
     his ability to put aside any personal or political views and 
     apply the law in a thoughtful and equitable manner.

  That is Jeanne Seewald in a letter to Chairman Hatch and Senators 
Leahy and Schumer dated April 8 of last year when this issue came up. 
So this lady does not share his political views, or I assume his views 
maybe on abortion or other issues, but she knows he will be a fair and 
good judge.
  Here is another letter:

       Leon has trained me in the practice of law and now, as my 
     partner, works with me on several matters. His office has 
     been next to mine at the firm approximately two years. During 
     that time, I worked with Leon as an expectant mother and now 
     work with him as a new mother. Leon's daughters babysit my 
     11-month-old son.
       I value Leon's input, not only on work-related matters but 
     also on personal matters. I have sought him out for advice on 
     a number of issues. Although Leon and I do not always see 
     eye-to-eye, I respect him and trust his judgment. Above all, 
     he is fair.
       While working with Leon, I have observed him interact with 
     various people. He treats all people, regardless of gender, 
     station in life, or circumstance, with the same respect and 
     dignity. He has always been supportive of me in my law 
     practice, as well as supportive of the other women in our 
     firm. Gender has never been an issue in any decision in the 
     firm.

  That is a letter from Kristine Baker, April 8, to Senators Hatch, 
Schumer, and Leahy.
  Another female attorney in Little Rock, AR, Eileen Woods Harrison, 
states:

       I am a life-long Democrat and also pro-choice. I commend 
     Mr. Holmes to you. He is a brilliant man, a great lawyer and 
     a fine person.

  That was a letter sent to Senators Hatch, Schumer, and Leahy.
  Another one states:

       I heartily recommend Mr. Holmes to you. He is an 
     outstanding lawyer and a fine person. While he and I differ 
     dramatically on the pro-choice, pro-life issue, I am fully 
     confident he will do his duty as the law and facts of a given 
     case require.

  One more--well, let me ask right there, has there been any instance 
shown where he has failed to comply with the law in his practice, in 
any way shown disrespect to the court, or in any way said a judge or a 
lawyer should not obey the law and follow the law? No, and these 
letters say that.

  Beth Deere, in a letter dated March 24, 2003, to Senators Hatch and 
Leahy, states:

       I support Leon Holmes because he is not only a bright legal 
     mind, but also because he is a good person who believes that 
     our nation will be judged by the care it affords the least

[[Page S7553]]

     and the littlest in our society. I am not troubled that he is 
     personally opposed to abortion. Mr. Holmes is shot through 
     with integrity. He will, I believe, uphold and apply the law 
     with the utmost care and diligence.

  Well, I do not know what else can be said. The only thing I can see 
is that people do not like his views on abortion, they do not like the 
views on family he and his wife have, and they are holding him up for 
that. His views are not extreme. His views are consistent with the 
faith of his church, not only his church, but the majority of 
Christendom.
  Now does that make someone unqualified to be a Federal judge? Is the 
rule that no true believers in Catholic doctrine need apply for a 
Federal judgeship? They say that is not it; they say that they are not 
anti-Catholic. I am not saying anybody is anti-Catholic. I am saying a 
lot of people do not agree with the doctrine of a lot of Christian 
churches and that should not affect how they vote on a nominee if the 
nominee is proven to be committed to following the law.
  It is all right, of course, for a person to have a religious faith; 
everybody says that. We would never discriminate against anybody who 
has religious faith. But if their faith calls on them to actually 
believe something and they have to make choices and those choices are 
not popular or politically correct at a given time, but they adhere to 
them because they believe in them, it is part of the tenets of their 
faith and the church to which they belong--and I would note 
parenthetically no church spends more time studying carefully the 
theology of its church and the doctrines of its church than the 
Catholic church--if they are consistent with that church's beliefs, 
they now no longer can be confirmed as a Federal judge?
  It is all right if one goes along and does not ever do anything to 
actually affirm aggressively the doctrine of their church. In other 
words, if one goes to mass and never says anything about the question 
of abortion or family or other issues outside of the church doors, then 
they are all right, but if someone actually writes an article somewhere 
and says, I believe in this, they risk being punished. Actually, in 
this case it was an article written from one Catholic couple to other 
Catholics discussing in depth some of the doctrines of the church and 
how they believed in them. So the Holmes shared their thoughts within 
their church family about how the church's views ought to be 
interpreted and expressed their personal views about how it ought to 
be, does that disqualify them from being a Federal judge? No. I think 
this is a bad policy.
  The question should simply be this: Will he follow the law of the 
U.S. Supreme Court on abortion even if he does not agree with it? And 
the answer is, yes. He has already stated that unequivocally. His 
record shows that.
  The lawyers who practice with him who are pro-choice, women lawyers 
who affirm him so beautifully and so strongly, say he is going to 
follow the law. The American Bar Association, which is pro-choice and 
to the left of America on a host of issues, gave him their highest 
rating of well qualified.
  The Arkansas Supreme Court has asked him to sit on their court at 
various times because they respected him. In 2001, he wrote the best 
legal writing in the State.
  Some say they are worried because he has never been a judge. So he 
has not sat on the bench before. I do not think that is a matter that 
disqualifies him. Most people who become judges have not been a judge 
before on the district bench.
  So what do we do to assess how he will act as a Judge? We talk to the 
lawyers, talk to the American Bar Association, talk to other judges in 
the State, and ask: What is this person like?
  They all say he is first rate. Both Democratic Senators from 
Arkansas, who know this man, known lawyers who know this man and are 
familiar with his reputation, support him.
  As one of our Members said earlier, in criticizing him, they asked: 
How can I vote for someone who believes women should be subordinated to 
men in this modern age?
  That is not the gist of the Pauline doctrine in Ephesians. Mrs. 
Holmes wrote to tell us that she is not subordinate and she believes in 
equality and that their joint article did not mean anything other than 
that.
  The Catholic Church does believe in ordination of only males. Some 
may disagree with that. I am a Methodist. We, I am pleased to say, 
ordain women. There are many women ministers in our church. But I want 
to ask again, if a person agrees with the doctrine of his church, which 
has been discussed and considered by the finest theologians for 
hundreds of years, and he agrees with that, and we don't agree with 
that, we don't think that is right, do we now think we should vote 
against that person because we don't agree with his religious beliefs? 
It is very dangerous to do that. We should not do it.
  I ask again, what about other denominations and other faiths that 
have different views from ours? We may find them far more offensive 
than this. Are we going to refuse to vote for them? Are we going to 
insist that those people renounce the doctrines of the church to which 
they belong as a price to be paid before they can become a Federal 
judge? I hope not. I think we are making a mistake.
  If there was something which would show that Judge Holmes could not 
follow the law, was not a first-rate attorney, did not have the respect 
of his colleagues, did not have the respect of the American Bar 
Association, had women lawyers who thought he was a sexist and unfair 
in the treatment of them and they came forward and said so, OK, I might 
be convinced. But none of that occurs here. That is not what we have. 
We have nothing but his personal beliefs that are consistent with the 
faith of his church. Some people don't agree with his views regarding 
his faith and tell us that they are going to vote against him because 
of that. That is not a good idea; that is not a good principle for us 
in this body to follow.
  This is what his wife wrote. The first thing I will just note in 
here, she said, ``The article is a product of my''--she italicized 
``my''--``my Bible study over many years of my marriage.''
  But it was a joint article. She says this:

       I am incredulous that some apparently believe my husband 
     views men and women as unequal when the article states 
     explicitly that men and women are equal. The women who have 
     worked with my husband, women family members, women friends, 
     can all attest to the fact that he treats men and women with 
     equal respect and dignity. I can attest to that in a special 
     way as his wife.

  She noted this was an article from a Catholic couple to Catholic 
laypeople. ``It has no application to anyone who is not attempting to 
follow the Catholic Christian faith.'' She also notes that Leon cooks 
his share of meals, washes the dishes, does laundry, and has changed 
innumerable diapers, and she has worked many years outside the home, 
although right now she does not.
  I would like to have printed in the Record an article from the Mobile 
Press-Register of the State of Alabama. It notes the similarity to the 
treatment given to Alabama's attorney general, Bill Pryor, when he was 
nominated to the Federal court of appeals, a man who also is a 
thoughtful, intelligent, committed Christian Catholic. This is what the 
Mobile Press-Register says:

       The example of Bill Pryor should be illustrative in the 
     case of Leon Holmes as well. When a nominee enjoys strong 
     bipartisan support from the home-state folks who know him 
     best, and from some of the top non-partisan legal officers in 
     the country, that support should weigh far more heavily than 
     should the out-of-context criticisms from ideological 
     pressure groups whose fund-raising prowess depends on how 
     much havoc they wreak on the nomination process.

  I know Attorney General Bill Pryor was asked about his personal 
religious views on issues such as abortion. He answered honestly and 
truthfully and consistently with his faith, a faith that he studied 
carefully. People didn't like it: Well, I don't agree with you on 
abortion, they say.
  So what. We don't have to agree on abortion to support somebody for a 
Federal judgeship. He affirmed and had demonstrated that he would 
follow any Supreme Court rulings and could demonstrate as attorney 
general of Alabama he followed those rulings. That wasn't enough for 
them. They weren't satisfied.
  I ask unanimous consent this article dated July 5, 2004, be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S7554]]

                      [From al.com, July 5, 2004]

              Pryor's Example Bears on Holmes Controversy

       U.S. Senators considering how to vote Tuesday in a new 
     judicial nomination battle should reflect on a lesson 
     provided by a decision just written by Judge William Pryor of 
     the 11th U.S. Circuit Court of Appeals.
       Judge Pryor, of course, is the Mobile native and former 
     Alabama attorney general whose own nomination to the bench 
     was long blocked by smear tactics employed against him by 
     liberal opponents. When Senate Democrats used a questionable 
     filibuster to deny Mr. Pryor the ordinary lifelong term as a 
     judge, President George W. Bush gave him a special ``recess 
     appointment'' to the bench that lasts only through the end of 
     2005.
       One of the many cheap shots launched at Mr. Pryor during 
     the confirmation battle was the charge that he was 
     insensitive to women's rights. The allegation, based on a 
     legal brief he filed on one technical aspect of a federal 
     law, ignored the overwhelming bulk of his legal and volunteer 
     work to secure protections for women.
       One of Mr. Pryor's first decisions as a federal judge, 
     released last Wednesday, proves again the illegitimacy of the 
     original charge against him. The case involved a woman in 
     Delray Beach, Fla., who claimed she was the victim of two 
     counts of sex discrimination by her former employer. The 
     district court had thrown out both of her claims on ``summary 
     judgment,'' meaning it found so little legal merit to her 
     allegations that the case wasn't even worth a full trial.
       On appeal, however, Mr. Pryor reinstated one of the woman's 
     claims and ordered it back to trial at the district level. 
     His willingness--on well-reasoned legal grounds, we might 
     add--to force the woman's case to be heard provides yet more 
     evidence refuting the allegation that he somehow is hostile 
     to women's rights.


                          holmes is like Pryor

       As it happens, another Bush nominee is facing similar, and 
     similarly baseless, allegations. Arkansas lawyer and scholar 
     Leon Holmes is due for a Senate vote on Tuesday. While no 
     filibuster is planned against him, opponents hope to defeat 
     him on a straight up-or-down vote by highlighting past 
     statements of his that supposedly touch on women's rights.
       The parallels to the Pryor nomination battle are striking, 
     both because opponents are taking the nominee's statements 
     out of context and because much of the opposition stems from 
     factors emanating from the nominee's Catholic faith.
       In the most prominent controversy, Mr. Holmes and his wife 
     together wrote an article for a Catholic magazine that 
     touched on Catholic theological teachings concerning marriage 
     and gender roles in the clergy. Included was an explication 
     of the famous lines in St. Paul's letter to the Ephesians 
     that say, ``Wives, submit to your husbands as to the Lord.''
       Aha! Sen. Dianne Feinstein of California asserted that this 
     passage makes Mr. Holmes antagonistic towards women's rights. 
     Never mind that in the very same article, the Holmes couple 
     wrote: ``The distinction between male and female in 
     ordination has nothing to do with the dignity or worth of 
     male compared to female,'' and ``Men and women are equal in 
     their dignity and value.''
       Never mind that Mr. Homes has elsewhere written that 
     ``Christianity and the political order are assigned separate 
     spheres, separate jurisdictions.'' Never mind that a host of 
     pro-choice, liberal women from Arkansas have written in favor 
     of Mr. Holmes' nomination, nor that the Arkansas Democrat-
     Gazette has praised the ``rare blend of qualities he brings 
     to the law--intellect, scholarship, conviction, and 
     detachment.''
       And so on and so forth: For every out-of-context allegation 
     against Mr. Holmes, there is a perfectly good answer.


                           Bipartisan support

       Philip Anderson, a recent president of the American Bar 
     Association and a long-time law partner of Leon Holmes, 
     endorsed Mr. Holmes: ``I believe that Leon Holmes is superbly 
     qualified for the position for which he has been nominated. 
     He is a scholar first, and he has had broad experience in 
     federal court. He is a person of rock-solid integrity and 
     sterling character. He is compassionate and even-handed. He 
     has an innate sense of fairness.''
       Finally, in what in less contentious times would end all 
     questions about Mr. Holmes' fitness, both senators from his 
     home state, Blanche Lincoln and Mark Pryor (no relation to 
     Bill), have endorsed his nomination--even though he and 
     President Bush are Republicans, while both of them are 
     Democrats.
       It would be virtually unprecedented for the Senate to turn 
     down a candidate nominated by one party and supported by both 
     of his home-state senators from the other party.
       The example of Bill Pryor should be illustrative in the 
     case of Leon Holmes as well: When a nominee enjoys strong 
     bipartisan support from the home-state folks who know him 
     bests, and from some of the top non-partisan legal officers 
     in the country, that support should weigh far more heavily 
     than should the out-of-context criticisms from ideological 
     pressure groups whose fund-raising prowess depends on how 
     much havoc they wreak on the nomination process.
       Leon Holmes is no more antagonistic to women's rights than 
     is Bill Pryor--who, it should be mentioned, is in the Hall of 
     Fame of Penelope House, a prominent local women's shelter.
       Mr. Holmes ought to be confirmed, and the character 
     assassination must come to an end.

  Mr. SESSIONS. Mr. President, I think we will soon be voting--at 5:30. 
I urge my colleagues to remember this. You do not have to agree with a 
nominee's personal religious views to support him or her as judge. The 
fact that you do not share a person's personal religious views on a 
host of different matters is not a basis to vote no. The question is, 
Will that person follow the law?
  That is the right test. That is the classical test we have always 
had. We are getting away from it. We have Members I respect in this 
body who say we just ought to consider ideology, we just ought to 
consider their politics, just put it out on the table. Let's not 
pretend anymore that these things are not what some of my colleagues 
base their judicial votes on, let's put it out there.
  But I say to you that is a dangerous philosophy because it suggests 
that judges are politicians, that judges are people who are empowered 
to make political decisions; therefore, we ought to elect judges who 
agree with our politics. It is contrary to the Anglo-American rule of 
law through our whole belief system in which judges are given lifetime 
appointments so they can be expected to resist politics and to adhere 
to the law as it is written and as defined by the Supreme Court of the 
United States. That is what it is all about. That is what we need to 
adhere to here. If we move away from that idea, if we suggest we no 
longer believe or expect judges to follow the law and not to be 
politicians, we have undermined law in this country to an extraordinary 
degree. The American people will not put up with it.
  The American people will accept rulings even if they don't like them 
if they believe the court is following the law, if they believe the 
court is honestly declaring the Constitution. But if they believe our 
Supreme Court has ceased to do that, or any other judges in this 
country have ceased to do that, and they are then imposing their 
personal views--even though they have not been elected to office, don't 
have to stand for election for office, hold their office for life and 
they are unaccountable--they will not accept that.
  There is a danger in America at this point in time. What President 
Bush is doing, day after day, week after week, is simply sending up 
judges who believe the law ought to be followed and they ought not to 
impose their political views from the bench.
  How can we be afraid of that? Our liberties are not at risk by these 
judges, as one wise lawyer said at a hearing of the Judiciary 
Committee, of which I am a member. He said: I don't see that our 
liberties are at great risk from judges who show restraint. Our 
liberties are at risk from those who impose their political views from 
the bench.
  I think Justice Holmes has demonstrated a career of commitment to the 
law. He has won the respect of both of the Democratic Senators from 
Arkansas. He has won the respect of the Supreme Court of Arkansas. He 
has won the respect of the American Bar Association, fellow women 
lawyers who worked with him, year after year after year. He is the kind 
of person we want on the bench, a person who truly believes in 
something more than making a dollar, who has represented the poor and 
dispossessed, who has spoken out on issues that are important to him, 
who is active in his church. That is what we need more of on the bench. 
I urge the Senate to confirm Leon Holmes.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum and ask unanimous 
consent that the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I understand that we are under time 
control. I yield myself such time as I may use.

[[Page S7555]]

  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I strongly oppose the nomination of Leon 
Holmes to a lifetime appointment to the U.S. District Court for the 
Eastern District of Arkansas. His record gives us no confidence that he 
will be fair in the wide range of cases that come before him, 
particularly in cases involving the rights of women, gay rights, and 
the right to choose. His record contains example after example of 
extreme views of the law that suggest he will not follow established 
precedent.
  Every nominee who comes before us promises to follow the law, 
including laws in cases with which they disagree. Mr. Holmes is no 
exception. But the Senate's constitutional role of advise and consent 
gives each of us the duty to evaluate these claims carefully. It is 
clear from his record that Mr. Holmes has not shown the dedication to 
upholding constitutional principles and the judgment necessary for a 
Federal judge.
  Mr. Holmes has expressed extraordinary hostility to equal rights for 
women. In 1997 he wrote that it is a woman's obligation to 
``subordinate herself to her husband.'' He also wrote that a woman must 
``place herself under the authority of the man.'' It doesn't get much 
more extreme than that.
  In fact, Mr. Holmes has blamed feminism for the erosion of morality. 
He has written that ``to the extent that we adopt the feminist 
principle that the distinction between the sexes is of no consequence . 
. . we are contributing to the culture of death.'' Are we really 
expected to believe that someone with such medieval views will dispense 
21st century justice?
  This nomination is an insult to working women. It is an insult to all 
Americans who believe in fairness and equality.
  Just last week we celebrated the 40th anniversary of the Civil Rights 
Act of 1964 which gave women equal opportunity in the workplace. 
Democrats and Republicans alike joined in celebrating that important 
law. If that celebration is to be more than lip service, we cannot 
approve this nomination.
  Judges appointed to lifetime positions on the Federal court must have 
a clear commitment to the principles of equality in our basic civil 
rights laws. Mr. Holmes' view that a woman must ``place herself under 
the authority of the man'' does not demonstrate such a commitment.
  I ask unanimous consent to be printed in the Record Mr. Holmes' 
article containing these statements.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Gender Neutral Language--Destroying an Essential Element of Our Faith

                       (By Leon and Susan Holmes)

       Our whole life as husband and wife, as father and mother to 
     our children; and as Catholic Christians, is based on the 
     historic Catholic teaching regarding the relation between 
     male and female.
       So when that teaching is rejected, the rejection pierces 
     the heart of who we are as persons, as family, and as 
     Catholic Christians. Nothing causes us greater grief than the 
     fact that the historic and scriptural teaching on the 
     relationship between male and female is widely unpopular in 
     the Church today. We have studied these teachings, prayed 
     about them, and struggled to live them for the largest part 
     of the almost 25 years we have been married; and we ask your 
     indulgence and patience as we attempt to share the fruits of 
     our reflection and struggle with you.
       The historic teachings of the Catholic Church are grand, 
     elegant, and beautiful. When they are unpopular amount 
     Catholics, it is usually because they are not understood; and 
     so it is; we think with respect to the teaching of the Church 
     regarding the relationship between male and female. The 
     passages of Scripture that call Christians ``sons of God'' 
     and ``brothers'' are offensive only if they are 
     misunderstood. The teaching that only males can be ordained 
     to be the priesthood and the diaconate is offensive only if 
     it is misunderstood. Far from being offensive, these 
     teachings are elegant and beautiful; and true for this age, 
     as for every age, because truth is eternal.
       Catholic theology is essentially sacramental, which is to 
     say that its teaching is permeated by and flows from the 
     notion that there is an unseen reality that is symbolized by 
     visible, external signs. We believe, for instance, that 
     Christ was incarnate as a male because His masculinity is the 
     most fitting sign of the unseen reality of His place in the 
     Holy Trinity, who is revealed to us as Father, Son, and Holy 
     Spirit. Our relationship to God is a part of this unseen 
     reality, and it is twofold. In one aspect, we are related to 
     God as individuals; in another aspect, we are related to God 
     as a community. Individually, we are adopted into the same 
     relationship to the God the Father as Christ enjoys,which is 
     to say; we are all sons of God the Father and brothers of 
     Christ. All of us, male and female, are equally sons of God 
     and therefore brothers of one another. The equality of our 
     relationship is destroyed when some of us are called sons but 
     others are called daughters, some are called brothers but 
     others are called sisters. Daughters have not the same 
     relationship to their father as sons have. Daughters 
     cannot be like their father to the same extent as can 
     sons. Sisters have not the same relationship to brothers 
     as brothers have to one another. Sisters cannot be like 
     brothers to same extent as brothers can be like one 
     another. Hence Scripture refers to all Christians--Jew and 
     Greek, male and female, slave and free--as sons of God 
     (Gal. 3:26) and brothers of one another to signify the 
     equality, the sameness of our spiritual relationship in 
     its unseen reality to God.
       As a community, as a Church, we also have a relationship to 
     God as the bride of Christ. This relationship is an unseen 
     reality that is signified in the visible world by the 
     relationship between male and female and especially by the 
     relationship between husband and wife. Hence, the husband is 
     to love his wife as Christ loves the Church; and as the 
     Church subordinates herself to Christ, in that manner the 
     wife is to subordinate herself to her husband. The verb used 
     in Ephesians 5:24 is hypotassetai, which means to place one's 
     self under. The Church is to place herself under the 
     protection of Christ and ipso facto place herself under His 
     authority. Likewise, the woman is to place herself under the 
     authority of the man and ipso facto place herself under his 
     authority. Both the man and the woman are to live so that 
     their relationship is a visible sign of an unseen reality, 
     the relationship between Christ and the Church. Distorting 
     the relationship between male and female is as sacrilegious 
     as profaning any of the other sacraments that by which God 
     symbolizes a divine, unseen reality through tangible symbols.
       The use of male and female to symbolize the relationship 
     between Christ and the Church is pervasive in Scripture. In 
     Leviticus, for instance, whenever a sacrificial animal was to 
     stand for Christ, a priest, or a leader, the animal was 
     required to be male; whereas, whenever a sacrificial animal 
     was to stand for the common man or for the community, the 
     animal was required to be a female. In the Gospels, Christ 
     always forgave and never condemned women, though he sometimes 
     condemned men. Women were always forgiven because the Church 
     will always be forgiven. Men could be condemned for their 
     sins because Christ was condemned for our sins. If we were to 
     use ``gender neutral'' language to describe the relationship 
     between Christ and the Church, we would destroy an essential 
     element of our faith. To be true to the reality of the 
     relationship, we must recognize Christ as the groom and the 
     Church as the bride. Christ cannot be the bride, the Church 
     cannot be the groom; nor can Christ and the Church both be 
     groom or both be bride.
       This unseen reality is signified once again by an outward 
     sign within the Church, which ordains only males to those 
     positions in the Church that represent Christ among us, the 
     priesthood and the diaconate. Ignoring the distinction 
     between male and female in ordination is like ignoring the 
     distinction between male and female in marriage. It has 
     nothing to do with dignity or worth of male compared to 
     female. When a woman chooses to marry a man, it is not 
     because she thinks men have more dignity or value than 
     women. The suggestion that male-only ordination implies a 
     devaluation of women is as silly as the suggestion that a 
     woman devalues women when she looks exclusively among men 
     for a husband. The assertion that males and females both 
     should be ordained without regard to their sex is akin to 
     the assertion that same-sex relationships should be 
     regarded as having equal legitimacy with heterosexual 
     marriage.
       The demand of some women to be ordained is prefigured in 
     the Old Testament when Korah and 250 ``well-known men'' 
     claimed the right to offer sacrifice equally with Moses and 
     Aaron because ``all the congregation are holy, every one of 
     them, and the Lord is among them'' (Nm. 16:3). It is true 
     that all the congregation are holy and the Lord is among 
     them; but it does not follow that all are entitled to offer 
     sacrifice. By the same token, it is true that men and women 
     are equal in their dignity and value, but it does not follow 
     that all are entitled to be ordained. Ordination does not 
     signify the intrinsic worth or holiness of the one ordained; 
     it signifies that the one ordained is to be another other 
     Christ to the Church, which is to say another groom to the 
     bride. A woman cannot be ordained, not because she is 
     inferior in dignity to a man, but because she cannot be a 
     husband to the Church, which is the bride of Christ.
       In a way that we cannot understand, the relationship 
     between the unseen reality and the visible signs is 
     reciprocal. St. Paul says he was made a minister to make all 
     men see what is the plan of the mystery hidden for ages in 
     God who created all things, that through the church the 
     manifold wisdom of God might now be made known to the 
     principalities and powers in the heavenly places (Eph 3:10). 
     He also says the apostles have been made a spectacle ``to the 
     world, to angels and to me'' (1 Cor. 4:9). In the same vein,

[[Page S7556]]

     he says a woman should have a veil on her head (as a sign of 
     authority) ``because of the angels.'' It is an awesome 
     thought that what we do somehow signifies the reality of the 
     unseen world; but it is even a more awesome thought, that God 
     calls us to make known the reality of the unseen world to the 
     unseen world.
       In the biological sphere, life depends on the relationship 
     between male and female. In this respect, the biological 
     sphere is a visible sign of the unseen reality of the 
     spiritual realm in which life depends on the relationship of 
     Christ and the Church. Sexuality is a ``great mystery . . . 
     in reference to Christ and the Church'' (Eph. 5:32).
       All of this is why denominations whose theology is not 
     essentially sacramental have been quick to endorse artificial 
     contraception, divorce and the ordination of women; and it is 
     why they are much more open to the legitimation of homosexual 
     relationships. Churches whose theology is essentially 
     sacramental, which is to say the Catholic Church and the 
     Orthodox Churches, cannot accommodate the spirit of the 
     age with respect to these matters no matter how 
     overwhelming the society pressure. To do so would be to 
     repudiate the essence (in the strictest Thomistic sense of 
     the word) of our whole theology. Apart from sacramental 
     theology sexuality is just another physical function and 
     the distinction between the sexes is no more significant 
     than the distinction between right-handed persons and 
     left-handed ones. When we treat the distinction between 
     the sexes as of no consequence, we are parting from 
     sacramental theology, which is to say we are parting form 
     Catholicism, which is to say we are parting from 
     Christianity.
       It is not coincidental that this culture of death in which 
     we live is a culture that seeks to eliminate the distinctions 
     between male and female. It is not coincidental that the 
     feminist movement brought with it artificial contraception 
     and abortion on demand, with recognition of homosexual 
     liaisons soon to follow. The project of eliminating the 
     distinctions between the sexes is inimical to the 
     transmission of life, which is the raison d'etre of that 
     distinction in both the biological and spiritual realms. No 
     matter how often we condemn abortion, to the extent we adopt 
     the feminist principle that the distinction between the sexes 
     is of no consequence and should be disregarded in the 
     organization of society and the Church, we are contributing 
     to the culture of death.
       As Church, we are the bride of Christ. We are to submit to 
     Him. This means in part that we are to take on the mind of 
     Christ rather than adopt whatever paradigm prevails in the 
     age in which we live. As Bishop McDonald said last January 
     when talking about abortion, ``I do not want a Church that is 
     right when the world is right, I want a Church that is right 
     when the whole world is wrong.''
       We write in a spirit of friendship, not of animosity. We 
     have brought all five of our children into the Catholic 
     Church. It is no exaggeration to say we have bet their 
     eternal lives on the Church. At the same time, we have built 
     our whole family life on the traditional and now unpopular 
     teachings about the relationship between male and female. 
     What are we to do when we see these pillars of our life start 
     to separate and pull apart? How do we stand on both? How can 
     we stand on only one?

  Mr. KENNEDY. Mr. President, Mr. Holmes has expressed opinions that 
cast doubt on his fairness on other civil rights issues as well. He has 
criticized remedies to enforce the requirements of school desegregation 
under Brown v. Board of Education. He has written that Federal court 
orders requiring assignment of students to desegregate public schools 
are part of ``a cultural and constitutional revolution in the past 20 
years . . . for which the Nation has never voted.'' He has called such 
remedies authoritarian and argued that it is an ``injustice,'' that 
overturning them would require a change in the Constitution.
  I ask unanimous consent that Mr. Holmes' letters on this subject also 
been printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          [From the Christian Science Monitor, Dec. 23, 1980]

       Nina Totenberg asks in ``Did America vote for this, too?'' 
     whether the people of the United States voted for ``a 
     cultural and constitutional revolution.'' The truth is that 
     the United States has undergone a cultural and constitutional 
     revolution in the past 20 years, and the revolution is one 
     for which the nation has never voted.
       Seven years ago, seven members of the Supreme Court held 
     that the abortion laws in all 50 states violate the 14th 
     Amendment, despite the fact that virtually every state that 
     ratified the amendment had a restrictive abortion law at the 
     time. Eight years ago the Supreme Court held the death 
     penalty laws in virtually every state to be in violation of 
     the 14th Amendment, despite the fact that the very wording of 
     the amendment acknowledges the authority of states to take 
     life when done according to due process. Nine years ago the 
     Supreme Court held that the 14th amendment grants to federal 
     courts the power to order schools to bus students to achieve 
     racial balance. Nineteen years ago the Supreme Court held 
     that public schools are not allowed to authorize prayer as a 
     part of their activities.
       Combined, these rulings constitute a significant cultural 
     and constitutional revolution. This revolution, not the 
     conservative reaction to it, is the novelty on the American 
     political scene. This revolution has been accomplished by 
     authoritarian means, despite the charges that its opponents 
     are authoritarians.
       If we now submit these issues to the electorate or the 
     legislative process, the only injustice will be that the 
     opponents of the recent revolution will bear the burden of 
     mustering a two-thirds majority in Congress and majorities in 
     38 states in order to restore the Constitution.
                                                      Leon Holmes,
                               Augustana College, Rock Island, IL.

                [From Daily Dispatch, December 24, 1980]

                             Abortion Issue

       To the Editor: In response to the misrepresentations of 
     Murray Bishoff's recent letter, I make the following 
     comments:
       First, the HLA explicitly permits ``those medical 
     procedures required to prevent the death of the mother'' 
     Second, nothing in the HLA would affect the birth control 
     pill or prevent anyone from buying and using contraception. 
     Mr. Bishoff simply misstates the effect of the HLA on these 
     issues. third, it seems to me that the language of the HLA 
     neither explicitly allows nor explicitly prohibits the IUD 
     and the morning after pill. Bishoff's concern for rape 
     victims is a red herring because conceptions from rape occur 
     with approximately the same frequency as snowfall in Miami. 
     Fourth, it is silly to say that such trivialities are the 
     principal concern of either HLA proponents of opponents.
       If Bishoff really is not ``anti-life'' and if he sincerely 
     believes the HLA to be overly broad, he and others like him 
     should propose a ``complex response'' to these ``complex 
     issues.'' In the absence of an alternative proposal, I cannot 
     help but think their criticism a dishonest effort to 
     perpetuate the status quo, with some 1.8 million abortions 
     per year performed, including 160,000 in the 6th, 7th and 8th 
     months of pre-natal life. In light of these facts, it simply 
     cannot be true that ``The reality is that no one likes 
     abortion.''
       Bishoff's letter contrasts ``a fetus'' with ``people.'' But 
     the word ``fetus means, simply, a person developing in the 
     womb. To continue our present policy is to give those persons 
     in the womb no rights at all, not even the most minimal 
     right, the right to life. I think that the abortion issue is 
     the simplest issue this country has faced since slavery was 
     made unconstitutional. And it deserves the same response.

                                                  Leon Holmes,

                                 Ass't Prof. of Political Science,
                                   Augustana College, Rock Island.

  Mr. KENNEDY. Mr. President, he opposed the Civil Rights Restoration 
Act of 1987, an act approved by a broad, bipartisan majority to restore 
the original meaning of title VI and title IX of the Civil Rights Act 
which prohibit discrimination in federally funded activities.
  Mr. Holmes has also expressed views hostile to gay rights. At one 
point he even said he opposed the feminist movement because he feared 
it would bring ``recognition of homosexual liaisons.''
  Mr. Holmes' record also indicates that he is intensely opposed to a 
woman's constitutional right to choose. In his answers to questions, 
however, he said that he disagrees with the Supreme Court's decision in 
Roe v. Wade, but he would not try to undermine Roe if he became a 
Federal judge. But merely repeating the mantra that he will ``follow 
the law'' does not make it credible that he will do so.

  Regardless of the assurances he made after he was nominated for a 
Federal judgeship, no one looking at his record can avoid the 
conclusion Mr. Holmes has dedicated much of his career to opposing Roe 
v. Wade. It defies reason to believe he will abandon that position if 
he becomes a Federal judge.
  In fact, he has demonstrated a clear commitment to using a variety of 
political and legal means to take away a woman's right to choose. His 
statements opposing it are among the most extreme we have seen.
  He has said the concern expressed by supporters of choice for ``rape 
victims is a red herring because conceptions from rape occur with the 
same frequency as snow in Miami.'' According to the American Journal of 
Preventive Medicine, at least 25,000 pregnancies resulted from rape in 
1998 alone.
  Mr. Holmes has likened abortion to slavery and the Holocaust.
  In the mid-1980s, Mr. Holmes helped write an amendment to the 
Arkansas Constitution to ban the use of any public funds for abortion, 
even in cases of rape or incest, and even if abortion was necessary to 
safeguard a woman's health.
  In 1995, he stated the ``only cause that I have actively campaigned 
for

[[Page S7557]]

and really been considered an activist is the right to life issue.''
  In 2000, he wrote an article expressing his approval of ``natural 
law,'' the idea that people have inalienable rights that precede the 
Constitution. That great phrase is part of the Declaration of 
Independence. But then Mr. Holmes went on to state any recognition of a 
right to privacy in cases such as Roe v. Wade is illegitimate and 
inconsistent with natural law. Supporters of Mr. Holmes' nomination say 
his statements do not show he will fail to enforce the law if he 
becomes a Federal judge. It is true that after he was pressed by 
several Senators, Mr. Holmes admitted his statement that pregnancies 
from rape occur as frequently as snow in Miami was too inflammatory. 
But this was more than an isolated statement--it came in the context of 
an extensive pattern of strident, anti-choice statements, writings, and 
actions over the past two decades. His cavalier dismissal of the 
problems facing rape and incest victims is consistent with his repeated 
attempts to repeal or severely limit the right to choose, even in cases 
of rape or incest.
  Supporters of the nomination suggest many intemperate statements he 
has made say nothing about how he will interpret the law. But that 
defies common sense. Mr. Holmes is a self-proclaimed activist against a 
fundamental constitutional right. Why should we approve a nominee who 
has made such strong and intemperate statements against rights 
established in the Constitution? Why should we confirm a nominee who 
has stated women must be subservient to men? Even if we assume those 
strong opinions will somehow not affect how he interprets the law, they 
clearly do not reflect the judgment and temperament we expect from a 
Federal judge.
  I respect the views of my colleagues from Arkansas who support Mr. 
Holmes' nomination. But too much is at stake. Once nominees are 
confirmed for the Federal courts, they serve for life, and will 
influence the law for years to come.
  We all know the values Americans respect the most: the commitment to 
fairness, equality, opportunity for all, and adherence to the rule of 
law. The American people expect us to honor these values in evaluating 
nominees to the Federal courts, and our consciences demand it. Mr. 
Holmes has every right to advocate his deeply held beliefs, but his 
record and his many extreme statements--especially about women's role 
in our modern society--raise too many grave doubts to justify his 
confirmation, and I urge my colleagues to oppose his nomination.
  Mr. President, 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. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I want to respond to a few of the 
comments that have been made earlier today.
  One of the complaints that has been made is that Leon Holmes, in a 
letter, said pregnancies from rape were as rare as snowstorms in Miami. 
I think there is a literary device called exaggeration for effect. I am 
sure he did not intend that literally. As a matter of fact, some of the 
studies at that time showed pregnancies as a result of rape to be very 
rare indeed. I think since then numbers have come out to show a larger 
number have resulted from rape.
  Mr. Holmes apologized, not recently but a number of years ago, for 
that statement and, in fact, has written a nice letter in which he 
dealt with that explicitly and said that was not appropriate and noted 
he had matured over the years. I point out he wrote that letter before 
he became a lawyer in the early 1980s, or earlier, as a young man 
debating as a free American citizen an issue that was important to him.
  So that is what he said. That is how that came about. He has 
apologized for it. I do not think it was malicious. I do not think he 
intended anything bad by it. I think he was trying to make the point 
that based on the evidence he had at the time not that many abortions 
occurred as a result of rape. But he has admitted that was wrong and he 
should not have used that kind of language. He has apologized to 
everybody he can apologize to. But it will not make much difference, I 
am sure, to some people.
  I see the chairman of the Judiciary Committee in the Chamber, Senator 
Hatch.
  I remember we had a young man who had gone off to college, I guess in 
his early twenties, and had used a college credit card to purchase 
illegal property for himself, and they found it in the dorm room. He 
went off to the Army and did well and went to law school and did well, 
and we considered that and sat down, and we felt this was not 
disqualifying.
  So they say that as a young man he made this one statement and this 
is going to disqualify him from sitting on the bench? It was 24 years 
ago. Well, as if there is something bad about this man, his comment was 
on the only thing he has politically ever really been engaged with--the 
pro-life issue. His pro-life views are his religious belief. It is 
consistent with his church's belief. It is his personal belief. He 
believes it is a bad thing to abort human life. And he has been active 
out there as a private citizen--not as a judge, as a private citizen--
advocating. But the complaints they had about him on this issue were 
over 20 years ago before he even got his law degree. So I think they 
are not persuasive in this debate.
  He has also been attacked about the question of ``natural law.'' And 
he answered the questions of the Senate Judiciary Committee, by 
Democratic members, about when they asked him about it. He said:

       In my scholarly capacity, I wrote in my ``Comment on 
     Shankman'' that there are no other provisions that open the 
     door to natural law.

  He was asked whether he said that you couldn't alter the Constitution 
on a natural law basis on a specific case. I believe one of the members 
of the committee asked him, what about any other case? And he said no.
  He was asked another question:

       During his Supreme Court confirmation hearings, Clarence 
     Thomas testified that he did not ``see a role for the use of 
     natural law in constitutional adjudication.'' Do you disagree 
     or agree? Please explain why or why not?

  Mr. Holmes replied:

       As I have stated above, I do not believe that the courts 
     are empowered by the Constitution to appeal to natural law as 
     a basis for their decisions. The courts are given whatever 
     authority they have by the Constitution. The Constitution 
     does not authorize the courts to use natural law as a basis 
     for overruling acts of Congress or acts of state 
     legislatures.

  The comment that he believes natural law overrides the Constitution 
is contrary to his personal religious views but proves that he will be 
a fair judge.
  He was attacked viciously for the article he and his wife wrote about 
marriage. I will just note that he and his wife together were quoting 
the Pauline doctrine of marriage out of the book of Ephesians in the 
New Testament. It was written in a Catholic magazine for Catholic 
readership. It assumed certain background knowledge by the readers of 
the article on Catholic doctrine. It did not attempt to explicate 
Catholic theology for readers of other faiths who would lack that 
background and have difficulty understanding. Moreover, the main thrust 
of the article was to explain why gender-neutral language was 
inappropriate in the liturgy of a church. It did not focus on Catholic 
doctrine on marriage.
  In a letter to Senator Blanche Lincoln, a fine Senator from Arkansas 
who supports him and a Democratic Senator, he wrote this in explaining 
what he and his wife meant:

       The Catholic faith is pervaded with the view that the 
     visible things symbolize aspects of the spiritual realm. This 
     pervasive element of the faith is manifest in the teaching 
     that the marital relationship symbolizes the relationship 
     between Christ and the Church. My wife and I believe that 
     this teaching ennobles and dignifies marriage and both 
     partners in it. We do not believe that this teaching demeans 
     either the husband or the wife but that it elevates both. It 
     involves a mutual self-giving and self-forgetting, a 
     reciprocal gift of self. This teaching is not inconsistent 
     with the equality of all persons, male and female, and, in 
     fact, in that column we say: ``[a]ll of us, male and female, 
     are equally sons of God and therefore brothers of one 
     another.'' This aspect of my faith--the teaching that male 
     and female have equal dignity and are equal in the sight of 
     God--has been manifest, I believe in my dealings with my 
     female colleagues in our firm and in the profession as a 
     whole.


[[Page S7558]]


  Indeed, many of them support him quite strongly. I reserve the 
remainder of the time and yield the floor.
  Mr. KYL. Mr. President, I rise today to respond briefly to the 
comments made by Members on the other side of the aisle about the 
nomination of J. Leon Holmes to be a District Court Judge for the 
Eastern District of Arkansas.
  Mr. Holmes has been criticized for a number of comments--some of 
which are more than two decades old. Yet his opponents ignore the best 
evidence about Mr. Holmes: the people who have known him well 
throughout the past two decades of his legal career. As Senator Lincoln 
of Arkansas recently noted in reaffirming her support for Mr. Holmes, 
letters of support from:

       the legal community in Arkansas, many of whom share 
     different views than Mr. Holmes . . . describe him as 
     ``fair,'' ``compassionate,'' ``even-handed,'' and 
     ``disciplined.'' His colleagues hold him in high esteem.

  That is from a press release of Senator Blanche Lincoln, April 11, 
2003. The other home State Senator, Senator Pryor also, of course, a 
Democrat--supports Mr. Holmes.
  Additionally, the strong support of Mr. Holmes' colleagues in the 
legal community caused the American Bar Association to give him its 
highest rating of ``well-qualified.'' Finally, the Arkansas Democrat-
Gazette, Holmes' hometown paper, is intimately familiar with his record 
and strongly supports him. The paper, writing while Mr. Holmes was 
being considered, indicated that Mr. Holmes was a well qualified, 
mainstream nominee:

       What distinguishes Mr. Holmes is the rare blend of 
     qualities he brings to the law--intellect, scholarship, 
     conviction, and detachment. A reverence not just for the law 
     but for ideas, for the life of the mind. All of that would 
     shine through the clutter of argument that awaits any judge . 
     . . . He would not only bring distinction to the bench but 
     promise. . . . In choosing Leon Holmes, [the President] could 
     bequeath a promise of greatness.

  That is from an editorial, Name on a List in a Field of Seven, One 
Stands Out, Arkansas Democrat Gazette, Dec. 1, 2002, at 86.
  It is easy to use out-of-context comments to paint an incomplete and 
inaccurate picture of a person. By looking at the entire context of Mr. 
Holmes' career, it is clear that he is held in high regard by those who 
know him and his work. This includes those who hold views contrary to 
those of Mr. Holmes, such as Stephen Engstrom, who on March 24, 2003 
wrote to Chairman Hatch and Senator Leahy:

       I heartily commend Mr. Holmes to you. He is an outstanding 
     lawyer and a man of excellent character. Leon Holmes and I 
     differ on political and personal issues such as pro-choice/
     anti-abortion. I am a past board member of our local Planned 
     Parenthood chapter and have been a trial lawyer in Arkansas 
     for over twenty-five years. Regardless of our personal 
     differences on some issues, I am confident that Leon Holmes 
     will do his duty as the law and facts of any given case 
     require.

  Letters like this, from people who have known Mr. Holmes well in the 
context in which he would serve, are the best evidence regarding Mr. 
Holmes. It is always appropriate to consider questions raised about 
comments that a nominee has made in the past, and there certainly has 
been controversy about some of Mr. Holmes' statements. In this 
situation, I defer to those who know the nominee, and who are in the 
best position to put his statements into context. In this case, Mr. 
Holmes has overwhelming bipartisan support from those in his home 
State, especially those in the legal community, who have known him over 
the past two decades. Based on this evidence, I will support Mr. 
Holmes' confirmation to the Federal bench.
  Ms. COLLINS. Mr. President, I rise today to speak on the nomination 
of Leon Holmes to be a district court judge for the U.S. District Court 
of Arkansas.
  The ``advice and consent'' role given to the Senate in the U.S. 
Constitution is one of the Senate's most solemn duties, and one to 
which I give the utmost care. Since Federal judges serve for lifetime 
terms, I carefully review every nominee to ensure that he or she is 
well-qualified and possesses the proper professional competence and 
integrity. Although, naturally, I apply no litmus test with respect to 
a nominee's personal beliefs, a commitment to following the law and 
applying it soundly is critical.
  Perhaps the most important factor in evaluating a nominee is whether 
the person has the proper ``judicial temperament.'' There are two 
elements that must be considered when making this determination. The 
first involves what we would commonly understand the characteristics of 
good temperament to entail: would the nominee show courtesy and respect 
toward the practitioners and parties in his courtroom, while at the 
same time remaining confident and firm. From all I have heard about Mr. 
Holmes, he has a fine reputation for being both civil and professional, 
and I have no concerns about his nomination in this regard.
  The second element of judicial temperament is more troubling in this 
case. It involves the deliberative mindset that is so valued in our 
jurists--the ability to separate emotion and personal views while 
applying the laws in a neutral and impartial manner. A judge must be 
able to transcend personal views in ruling on the matters before the 
court. It is for this reason that I am concerned about whether Mr. 
Holmes has the proper judicial temperament to receive a lifetime 
appointment to the federal bench.
  After a careful review of the Judiciary Committee proceedings and Mr. 
Holmes' record, I have come to the conclusion that Mr. Holmes has not 
demonstrated the requisite ability to put aside his personal views and 
follow settled law. Over many years, Mr. Holmes has made a number of 
public statements, many in letters to the editor or in published 
articles, that raise serious questions about his ability to set aside 
his deeply held beliefs in order to impartially apply laws with which 
he disagrees. In fact, Mr. Holmes himself has characterized some of his 
previous comments as ``strident and harsh rhetoric.'' These statements 
were not made in the midst of casual conversation; they were largely 
written pieces that reflected the thoughts of Mr. Holmes on these 
matters.
  In one extremely troubling instance, Mr. Holmes wrote that ``concern 
for rape victims is a red herring because conceptions from rape occur 
with approximately the same frequency as snowfall in Miami.'' This 
appalling statement was not a chance comment, instantly regretted. 
Rather, Mr. Holmes included this statement in a letter he submitted for 
publication in The Daily Dispatch. In addition to the insensitivity and 
inaccuracy demonstrated by this comment, I believe it demonstrates that 
Mr. Holmes lacks the measured approach that is critical for sound 
judicial decision-making and the ability to set aside his personal 
views to apply settled principles of law.
  In an April 11, 2004 letter to Senator Lincoln, Mr. Holmes stated, 
``I do not propose to defend that sentence, and I would not expect you 
or anyone else to do so.'' While in this same letter Mr. Holmes went on 
to apologize for this remark, he also acknowledged that his comment 
``reflects an insensitivity for which there is no excuse.'' I agree 
with Mr. Holmes that there is no excuse for this statement, and his 
belated apology came only after he was nominated for the Federal bench.
  Unfortunately, this type of comment is not an isolated one, but one 
in a series of unsettling statements Mr. Holmes has made in his 
writings over many years. For example, Mr. Holmes authored an article 
in 1997 in which he wrote that ``the wife is to subordinate herself to 
her husband,'' and ``the woman is to place herself under the authority 
of the man.'' In 1982, Mr. Holmes authored another letter for the 
Arkansas Gazette, entitled ``The Scary New Argument for Abortion,'' in 
which he compared certain arguments justifying abortion to arguments 
used to justify the actions of Nazi Regime. In 2001, he authored a 
comment for another publication in which he criticized both Roe and 
Casey as ``constitutionaliz[ing] the theory of moral relativism.''
  Mr. President, let me be clear that I respect Mr. Holmes' personal 
views on abortion rights and am not opposing his nomination on those 
grounds. In fact, I have voted for many judicial nominees whose 
personal views were different from mine on the right to choose, among 
other issues. Nor do I believe that a nominee should be required to 
indicate how he would decide issues of substantive law that may arise 
in future cases. That is not the issue. The issue is whether Mr. Holmes

[[Page S7559]]

can put aside his personal views and follow settled law. Unfortunately, 
his strident statements about a woman's right to choose raise doubts 
about his commitment to following settled law, including Roe v. Wade.
  I note that the Judiciary Committee reported Mr. Holmes' nomination 
``without recommendation.'' It is extremely rare for a nominee to be 
passed from the Judiciary Committee in this manner. In fact, according 
to the Congressional Research Service, a district court nominee has 
never been reported out of Committee to the floor without 
recommendation. It is my belief that the Judiciary Committee's unusual 
action in this regard represents more than an historical quirk. In 
fact, it underscores the concerns about this nomination.
  Because of the concerns raised by the many writings and comments of 
Mr. Holmes, of which I have cited only a few examples, I am unable to 
support his nomination. Our legal system depends on having judges who 
put an allegiance to following settled law above any personal beliefs. 
Mr. Holmes' history of inflammatory statements could cause the parties 
before him to question whether his strong personal beliefs would allow 
him to follow settled law and apply it in a fair and unbiased way. Mr. 
President, in light of these concerns, I will oppose this nomination.
  Mr. SPECTER. Mr. President, after careful consideration, I am voting 
to confirm Mr. J. Leon Holmes for the United States District Court for 
the Eastern District of Arkansas.
  I am concerned about certain of his writings/statements where he 
said: ``. . . concern for rape victims is a red herring because 
conceptions from rape occur with approximately the same frequency as 
snowfall in Miami . . .'', ``the wife is to subordinate herself to her 
husband'' and analogies of pro-choice advocates to Nazis and abortion 
to slavery.
  Mr. Holmes subsequently acknowledged ``using strident and harsh 
rhetoric'' on abortion and wrote to Senator Blanche Lincoln that ``I am 
a good bit older now and I hope more mature than I was at that time,'' 
blaming immaturity for his past harsh statements.
  After discussing these issues with Mr. Holmes and noting that they 
were written some time ago, in 1980 and 1997 respectively, I do not 
believe that they reflect a fixed state of mind demonstrating a pre-
disposition on judicial issues to come before his Court. I am also 
mindful that, as a District Court Judge, his decisions will be subject 
to review by the Court of Appeals. There would be a substantially 
different consideration if he were a Circuit Court Judge where he could 
cast the decisive vote on a three-judge panel where it would be 
unlikely to be reviewed by the U.S. Supreme Court since certiorari is 
granted in such a small number of cases.
  Mr. Holmes has a very impressive academic record, graduating first in 
his law school class at the University of Arkansas, holds a Ph.D. in 
Political Science from Duke University and an M.A. degree from Northern 
Illinois University and is a member of Phi Beta Kappa.
  In voting for confirmation of Mr. Holmes, I also noted that he has 
the support of both of his home State senators. In their floor 
statements, Senator Blanche Lincoln and Senator Mark Pryor noted that 
Mr. Holmes has broad support among pro-choice advocates from Arkansas, 
and both Senators concluded that he should be confirmed based on their 
knowledge of his legal skills, temperament and character and based on 
his reputation in their community among others who know him. In 
addition to their floor statements, I talked individually to Senators 
Lincoln and Pryor who amplified to me their solid support for Mr. 
Holmes.
  For these reasons, I am voting to confirm Mr. J. Leon Holmes.
  Mr. DASCHLE. Mr. President, I would like to discuss the nomination of 
James Leon Holmes to be a federal court judge in the district court of 
Arkansas. Before I address Mr. Holmes' record and qualifications, 
however, I think it is important to remind my colleagues of where we 
are in confirming President Bush's judicial nominees and how the 
Senate's record stands in historical context.
  Thanks to bipartisan cooperation, the Senate has confirmed nearly 200 
of President Bush's judicial nominees. This is more confirmations than 
in President Reagan's entire first term, President George H.W. Bush's 
presidency, or in President Clinton's last term. There are now only 27 
vacant seats in the Federal courts, the lowest level of vacancies since 
the Reagan administration. In fact, more than 96 percent of Federal 
judicial seats are filled.
  With 28 judicial confirmations in this year alone, this Senate is 
well ahead of 1996, the last time a President was running for re-
election, and when Republicans allowed not one single judge to be 
confirmed until July. In 1996, Republicans allowed only 17 of President 
Clinton's judicial nominees to be confirmed, none of which were for the 
circuit courts. The Senate has confirmed five circuit court nominees 
this year. In total, the Senate has confirmed 35 circuit court 
nominees, which is more than President Reagan and President Clinton saw 
confirmed in each of their first terms.
  There have been limited occasions where a nomination raises such 
significant concerns that members choose to oppose granting that 
nominee a lifetime appointment on the Federal bench. However, these 
cases have been few. Democrats have allowed 98 percent of President 
Bush's nominees to be confirmed. In addition, Democrats recently 
reached an agreement with Republican leadership and the White House to 
ensure that 25 judicial nominees, including Mr. Holmes, receive an up 
or down vote on the Senate floor. Any objective look at the record 
shows that Democrats have been willing to work with the White House to 
confirm President Bush's nominees to the Federal bench.
  While Democrats have worked with Republicans to provide James Leon 
Holmes an up or down vote, I must oppose this nomination. I have great 
respect for my esteemed colleagues from Arkansas, who are supporting 
his nomination. However, my review of the nominee's record raises 
serious concerns about Mr. Holmes' ability to put his personal beliefs 
aside and decide cases based on the law. The Federal judiciary is too 
important to allow the appointment of any individual whose personal 
views interfere with his ability to interpret and adjudicate the laws 
of the United States impartially.
  This controversial nomination has been pending for a vote on the 
Senate floor for more than a year. His nomination was reported out of 
the Judiciary Committee last year without recommendation, a rarely used 
procedure. Mr. Holmes has been a lawyer for 20 years, and has made 
countless insensitive and extreme statements over the years. In just 
one troubling example, Mr. Holmes described slavery as divine 
providence intended to teach whites to be more Christlike.

  During his hearing before the Judiciary Committee, Mr. Holmes 
admitted that some of his remarks have been ``unduly strident and 
inflammatory,'' however, he also refused to promise to recuse himself 
in cases involving issues on which he already holds a committed 
position.
  In fact, during his hearing one Republican Senator on the Judiciary 
Committee asked Mr. Holmes, ``why in the world would you want to serve 
in a position where you have to exercise restraint and you could not, 
if you were true to your convictions about what that role as a judge 
should be, how you could feel like you have done everything you could 
in order to perhaps achieve justice in any given case.'' Rather than 
assuring the Committee of his ability to separate his personal beliefs 
from his role as a judge, Mr. Holmes simply conceded that ``I know it 
is going to be difficult for this Committee to assess that question, 
and I know it is a very important question.''
  Another example of why this concern was raised, in October 200, Mr. 
Holmes delivered a speech in which he stated that, ``Christianity, in 
principle, cannot accept subordination to the political authorities, 
for the end to which it directs men is higher than the end of the 
political order.''
  Mr. Holmes is entitled to these beliefs. And one of the magnificent 
aspects of our country is that every American can hold such beliefs and 
advance them in the national discourse. But our country was founded on 
the separation of church and state and the administration and 
adjudication of our laws must remain free from the influence of any one 
religious perspective.

[[Page S7560]]

That separation has been one of the linchpins of American liberty. 
Because of the unique role of the federal judiciary in preserving our 
liberties, the Senate needs to be vigilant and ensure that no judge is 
able to impose his or her religious views on the rest of our country.
  Mr. Holmes's actions and statements raise profound, and unanswered, 
questions about his willingness to set aside his personal beliefs when 
interpreting the law. Each member of the Senate has taken an oath to 
uphold and defend the Constitution and I believe that in good 
conscience we should not support the appointment of a judicial 
candidate who will not be able to do the same.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent that the vote on 
the nomination of J. Leon Holmes occur at 5:45 p.m. today and the time 
be equally divided. I further ask that when the Senate begins 
consideration of the class action bill this evening, it be for debate 
only.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. REID. Mr. President, how much time remains on the minority side?
  The PRESIDING OFFICER. There is 15 minutes.
  Mr. REID. We have Senator Schumer and Senator Durbin here to speak. 
We can divide that time between the two of them, so 7\1/2\ to each 
Senator, with Senator Schumer first.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I am not sure I will take my entire 7\1/
2\ minutes, but I do wish to speak for a minute regarding this 
nomination.
  Let me say before we begin that judging a potential judge is not an 
easy question. The question many of us grapple with is, Would this 
judge follow the law or would this judge impose his or her own views 
instead of the law? That is a difficult question for most nominees. I 
think both sides of the aisle think that way.
  Senator Hatch said a few years ago:

       I believe the Senate can and should do what it can to 
     ascertain the jurisprudential views of a nominee, that a 
     nominee will bring to the bench, in order to prevent the 
     confirmation of those who are likely to become judicial 
     activists.

  Activists go both ways. You can be an activist and want to move the 
clock way ahead or you can be an activist and want to move the clock 
way back. If you want to move the body politic further to the left or 
further to the right, then jurisprudence would dictate. In my judgment, 
if you use that standard, it is not very difficult to come to the 
conclusion that Mr. Holmes does not deserve to be on the Federal bench.
  It is true that when we evaluate candidacies of judges--at least some 
of us on this side; I for one--the fact they are district court 
nominees rather than court of appeals nominees means I give them a 
little extra room because they have less say and it is not an appellate 
court. But I think that Holmes is so far over, one of the most far over 
we have seen, that even though he is a district court judge, he did not 
deserve nomination, and he does not deserve approval by this body.

  Mr. Holmes clearly has been an ardent and passionate advocate for 
causes in which he genuinely believes. I respect that advocacy. But 
some of the rhetoric he has used, some of the arguments he has advanced 
should give one real pause--they sure give me real pause--as to who 
cares about the impartial enforcement of the rule of law.
  Mr. Holmes said that our Nation's record on abortion is comparable to 
our Nation's record on slavery. Perhaps even more disturbingly on this 
count, he said that rape leads to pregnancy about as often as snow 
falls on Miami. That last comment isn't about choice or abortion. It is 
offensive, it is disturbing, and it shows a pattern of thought. If it 
were a total aberration, then one might say, well, it is a mistake. But 
it wasn't.
  According to the weather almanacs we have consulted, it snowed once 
in Miami in the last 100 years. According to a study published by the 
American Journal of Obstetrics and Gynecology, over 32,000 women a year 
become pregnant as a result of rape or incest. I would say to Mr. 
Holmes, those 32,000 women a year are not a myth. If you were looking 
at the facts, not what you want to believe because of your deeply held 
views but the facts, you wouldn't have said that. And certainly you 
wouldn't have said it casually without doing some research. These 
32,000 women are not red herrings. They are real women in real pain, 
making traumatic decisions about whether to give birth to their 
tormentor's child.
  Unfortunately, that remark may be the most egregious but it is hardly 
isolated. He said that it is a woman's duty to subordinate herself to 
her husband and to place herself under the authority of the man. You 
can see, I hope, why we might be concerned that he is insufficiently 
attuned to women's rights.
  I know the President is going to go tomorrow to Michigan to speak on 
the issue of judicial nominees. I would like him to tell all the women 
in the audience what his nominee said about women and their rights. 
Let's see if he will talk about that tomorrow.
  My guess is that 99 percent of the women would be aghast that he said 
that--whether they are Democrats, Republicans, liberals, or 
conservatives. I asked Mr. Holmes in written questions whether he was 
concerned that, for example, a woman advancing a battered woman's 
defense against her husband would lack confidence in his impartiality. 
He said he doesn't see why anything he has written would justify any 
concern that he could not be impartial.
  Not only does Mr. Holmes not disavow his assertion that women are 
bound to subordinate themselves to men, he doesn't see why women should 
be troubled by this. To paraphrase Sir Arthur Conan Doyle, ``It is 
elementary, Mr. Holmes.'' It is pretty basic stuff. This is not a great 
epistemological argument. It is very simple why women could be 
offended. If you cannot see it, you should not be on the bench. If I 
were a woman in a dispute with a man, and my case was assigned to Mr. 
Holmes, I would be worried that Mr. Holmes could not even see why I had 
these concerns. That is troubling.
  There is a lot more to be worried about when it comes to the Holmes 
nomination. In his comments, which have already been printed in the 
Record, just over and over again he defended and endorsed Booker T. 
Washington's view that slavery was a consequence of divine providence, 
designed to teach white people how to be more Christ-like. Is the 
President going to mention that when he goes to Michigan? See what 
people think of that one. He said of all the cases in history, he would 
want to have argued the creation case. It is right at the top of the 
list. I don't know why he said that, since John Scopes was convicted. I 
guess Mr. Holmes thinks he could have done a better job teaching the 
evolutionary theory in the public schools. More egregious, in not any 
of these instances, with maybe the exception of the first, has he 
disavowed them; he stands behind them. These are not slips of the 
tongue. This is a man caught, when you look at his writing, in almost a 
time warp. This man probably doesn't even want to turn the clock back 
to the 1930s or 1890s but somewhere way back in the 1600s.
  Holmes said he believes he possesses sufficient self-transcendence--
his words--to be able to set aside his views and judge cases 
impartially. I don't think it is enough to get up and just say: I will 
follow the law.
  I don't mean to be flip, but it is just not that easy.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. In conclusion, if moderation is a criteria in choosing 
judges--and it is one of mine--Mr. Holmes abjectly fails the test. I 
urge that he be defeated.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I rise in opposition to the nomination of 
J. Leon Holmes. There is a reason this nomination has been sitting on 
the calendar for over a year. There is a reason the Republican Senators 
are breaking ranks to vote against this nominee because, frankly, the 
nomination of J. Leon Holmes really speaks volumes about the message 
being sent by this White House to the American people.
  Is this the kind of person they want to give a lifetime appointment 
on the Federal bench? The things he said--his own words--condemn him. 
He has written that ``the wife is to subordinate herself to her 
husband'' and ``the

[[Page S7561]]

woman is to place herself under the authority of the man and ipso facto 
place herself under his authority.''
  He wrote that abortion should not be available for rape victims 
``because conceptions from rape occur with the same frequency as snow 
in Miami.'' Does that sound like the kind of statement you want to hear 
from a man who is going to stand in judgment of cases brought before 
him, cases that involve the rights of women, the rights of victims of 
rape?
  Words count in life and in law. The words of a judge determine the 
outcome of a trial and the rights of the parties in the courtroom. The 
words of J. Leon Holmes convict him of insensitivity to some of the 
most basic issues in modern America.
  I know Mr. Holmes and I disagree on some critical issues, but that is 
not the basis for my opposition. We have already confirmed 197 of 
President Bush's nominees to the Federal bench. Trust me, the majority 
of them disagree with my positions on many issues, and I voted 
overwhelmingly because the President has his right to choose his 
nominees. But of all of the attorneys in Arkansas, and of all of the 
Republican attorneys in the State of Arkansas, of all of the 
conservative Republican attorneys in the State of Arkansas, is this the 
best the White House can do? A man who cannot really distinguish the 
role of women in a modern society? A man who so cavalierly dismisses 
the plight of a rape victim? This is a man who needs a lifetime 
appointment to stand in judgment of others?
  I asked him in a written question about whether he would recuse 
himself in cases as a Federal district court judge if any of the anti-
abortion organizations that he has represented or founded came into his 
court. He said no; he was going to stand in judgment of the same 
organizations that he founded and those that paid him. He would not 
recuse himself.
  I also asked him a basic question that we ask of all nominees. I 
asked:

       Mr. Holmes, name 3 Supreme Court cases with which you 
     disagree.

  He said:

       As a citizen, I am troubled by the Supreme Court decisions 
     in Dred Scott v. Sandford, Buck v. Bell, and Roe v. Wade, 
     because in my view each of those decisions failed to respect 
     the dignity and worth of the human person.

  How could a person make that statement in response to that question 
and say he will uphold the decision in Roe v. Wade, which is a basic 
right of privacy for women in America? That is what Mr. Holmes said. In 
fairness to Mr. Holmes, though, he has apologized for his statement 
about rape victims that ``conceptions from rape occur with the same 
frequency as snow in Miami.'' When I asked about his statement, he 
wrote back and said:

       Regardless of the merits of the issue, the articulation in 
     that sentence reflects an insensitivity for which there is no 
     excuse and for which I apologize.

  I think it is important that that apology is on the record. Where is 
the apology for his statement about the subordination of women to men? 
No statement of explanation or apology was forthcoming. Some have come 
to the floor on the other side and said: Listen, these happen to be his 
religious views. If you say you will not support him because of that, 
then you are discriminating against his religion.

  That is an upside down view of the world. Whether Mr. Holmes' views 
are based on religious beliefs, personal beliefs, cultural upbringing, 
or his life experiences, that is irrelevant. The basis for his beliefs 
is not important. What is relevant is whether his beliefs and his 
reasoning will guide his decisions as a Federal judge, his values that 
influence his judicial philosophy. The real question is, Are those 
beliefs reasonable, mainstream, commonsense beliefs?
  How can you read what this man has said about the issues of race and 
gender and say that these are mainstream views and he should have a 
lifetime appointment to instill those views into the decisions of the 
United States of America through its judicial system?
  Those on the other side say this is all about religion. It is not. It 
is about a candidate, a nominee for a judicial lifetime appointment. 
Our Constitution only refers to religion in a few particular areas: 
First, it says there will be no religious test to qualify to any office 
of public trust in the United States. Of course, in the first amendment 
it says that Congress shall make no law respecting the establishment of 
religion or prohibiting the free exercise thereof. Mr. Holmes is 
entitled to his religious beliefs, as I am, as Senator Hatch is, as 
every Member of the Senate is. But when his religious beliefs reach a 
point where they call into question whether he will be fair and 
balanced in his judicial capacity, that is an important public policy 
issue. We must face it. To say that his beliefs, whether generated by 
religion or otherwise, are inconsistent with mainstream thinking in 
America is not antireligious. He is entitled to his religious beliefs. 
It is a statement that we do not want to perpetuate those beliefs in 
the findings of a judge with a lifetime appointment. Mr. Holmes' 
statements, I am afraid, give us fair warning of what he will do as a 
judge.
  Of all of the conservative Republican attorneys in Arkansas, why did 
it come down to this man? I don't think it is an accident. I think it 
is a test. This White House is testing this Senate to see how far we 
can go, how far they can push us to put someone on the bench who is 
clearly out of the mainstream of American thinking.
  I yield the floor.
  Mr. HATCH. How much time remains?
  The PRESIDING OFFICER. Fifteen minutes.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I know the Senator from Illinois asked the 
question, Is this the best the White House can do? In all honesty, I 
think the people of Arkansas believe it is. The Democrat Gazette 
newspaper thinks it is. A lot of Democratic women who are law partners 
with this man think it is. I personally think it is a great nomination.
  His record has been visibly distorted on the floor today. Let me take 
a few minutes to rebut some of the charges and arguments made by those 
opposing Mr. Holmes' nomination. Many of these were addressed in the 
morning in my opening statement and by others.
  I refer my colleagues to the excellent statement made by the Senator 
who knows him best, our colleague from Arkansas--in fact, both 
colleagues from Arkansas, Senators Pryor and Lincoln. Senator Pryor 
worked with him and associated with him. Both he and Senator Lincoln 
support Mr. Holmes' confirmation.
  It seems kind of specious to make the argument that nobody in their 
right mind would support this man. There is no doubt Mr. Holmes has 
taken a public stance on many issues while in private life. He had a 
right to do so as an American citizen. We encourage citizens to play a 
role in the democratic process. That is what Mr. Holmes has done.
  We all can recognize abortion is a very divisive issue in this body 
about which many persons feel strongly. The issue today is not whether 
one view is right or wrong, but whether Mr. Holmes is able to set aside 
his personal views, whatever they may be, and act as a judge should 
act.
  The American Bar Association says, by giving him the highest rating 
possible, that he is able to do that. His friends in Arkansas say he 
is. The newspapers say he is. The two Senators from Arkansas, both 
Democrats, say he is. Let me make a few points in this regard.
  Some of the statements Mr. Holmes has made in the course of his 
activism are, without doubt, inflammatory. They were made 24 years ago 
when he was 27 years of age. To his credit, Mr. Holmes has apologized 
for his remark about rape which he made 24 years ago in the heat of the 
moment.
  In response to a written question from Senator Durbin, he wrote:

       I have to acknowledge that my own rhetoric, particularly 
     when I first became involved in the issue [of abortion] in 
     1980 and perhaps some years thereafter, sometimes has been 
     unduly strident and inflammatory. The sentence about rape 
     victims which was made in a letter to an editor in 1980 is 
     particularly troublesome to me from a distance of 23 years 
     later.

  It was a year ago he wrote this answer.

       Regardless of the merits of the issue, the articulation in 
     that sentence reflects an insensitivity for which there is no 
     excuse and for which I apologize.

  He was 27 years old. He was an activist in the pro-life cause. He has 
apologized over and over. Can we not as adults accept his apology, or 
do we require everybody to be perfect from 27 years old or before and 
on?

[[Page S7562]]

  In an April 11, 2002, letter to Senator Lincoln, Mr. Holmes explained 
in a similar manner.

       In the 1980s I wrote letters to the editor and newspaper 
     columns regarding the abortion issue using strident and harsh 
     rhetoric. I am a good bit older now and, I hope, more mature 
     as I was at the time. As the years passed, I came to realize 
     that one cannot convey a message about the dignity of the 
     human person, which is the message I intended to convey, 
     using that kind of rhetoric in public discussion.

  Referring directly to his 1980 ``snow in Miami'' remark--which has 
been more than plastered all over this place today in spite of the case 
we made that the remark was made years ago when he was a young man, and 
he has more than prostrated himself in asking for forgiveness--he said:

       I do not propose to defend that sentence--

  The sentence about ``snow in Miami''--

     and I would not expect you or anyone else to do so.

  Based upon this letter and the level of support Mr. Holmes enjoys in 
Arkansas, Senator Lincoln reaffirmed her belief that Mr. Holmes will be 
a fair judge, and so do the people of Arkansas and anybody who knows 
him.
  I share Senator Lincoln's views. The fact that Mr. Holmes recognizes 
his words in the past were sometimes strident and insensitive suggests 
to me he has undergone a maturation process for which he is given no 
credit by the perfect people here in the Senate who are so willing to 
sit in judgment on statements made by 27-year-olds. I wonder how they 
would fare if all of their 27-year-old statements were used to 
determine whether they could sit in the Senate.
  Mr. Holmes was questioned by my Democratic colleagues on many of the 
issues they raised today. I thought his answers were very responsive, 
and I want to review them today so there is no further distortion of 
his record, because we have had plenty of that today.
  In response to another question by Senator Durbin, which was whether 
Mr. Holmes, as a judge, would restrict the rights granted by Roe v. 
Wade, Mr. Holmes responded:

       The judge is an instrument of the court and hence the law. 
     Thus, the judge's personal views are irrelevant. Roe v. Wade 
     is the law of the land. As a judge, I would be bound by oath 
     to follow that law. I do not see how a judge could follow the 
     law but restrict the rights established by that law.

  I do not know what more he has to say to show good faith, but he 
surely said it there. In response to the question, ``Do you believe in 
and support a constitutional right to privacy?'' Mr. Holmes responded:

       I recognize the binding force of the court's holding in 
     Griswold and Eisenstadt recognizing a right to privacy. I 
     have never engaged in political activity directed toward 
     overturning the result obtained in Griswold or Eisenstadt. If 
     I am confirmed by the Senate, I would follow the rulings of 
     the Supreme Court.

  What do my colleagues need? Senator Leahy implied Leon Holmes has had 
some kind of confirmation conversion. That is the usual bullcorn that 
happens on the floor from time to time, especially with regard to 
judicial nominees.
  I note that the overwhelming evidence, based on his own actions and 
letters of support, is Mr. Holmes is a man who respects the rule of law 
and is a man of integrity and will follow the law. His colleagues say 
that. His women colleagues say that. People who differ with him 
personally on his views say that. They say he will respect the law and 
follow it.
  Mr. Holmes is not nominated to the Supreme Court where the Justices, 
such as Justice Thomas, Justice O'Connor, or other Justices, are 
required to review and sometimes vote to overturn previous decisions. 
Mr. Holmes, as a district court judge, is bound by the Supreme Court 
and the appellate court determinations and precedents.

  I also heard some criticism that was raised by Senator Feinstein from 
California that Mr. Holmes placed the Roe v. Wade decision in the same 
category as Dred Scott and Buck v. Bell, as Supreme Court decisions 
with which he disagrees. If he has, he has millions of Americans who 
also disagree with those three decisions, and I am one of them myself.
  Let me give the full and complete answer of Mr. Holmes on this issue. 
He stated:

       In my view, each of these decisions failed to respect the 
     dignity and worth of the human person. As a judge, I would 
     follow every decision of the Supreme Court that has not been 
     subsequently overruled.

  Even though he disagrees with Roe v. Wade, he will uphold it. I do 
not know when this business of not believing people on this issue 
started to take place, but it started back around the time of Justice 
Rehnquist's nomination, and it has been coming every year. And they say 
they do not have a litmus test. Give me a break.
  One can disagree with Mr. Holmes' personal views, but one cannot 
credibly argue that he does not respect the supremacy of the laws laid 
down by the Supreme Court. Everything the man stands for says that.
  Let me quickly turn to a few other issues raised today. I have 
already addressed the issue regarding the charge that Mr. Holmes is 
antiwomen. The article he wrote with his wife--both of them wrote it--
was to discuss their fervent belief in Catholic teachings regarding 
relationships. It was written for his religious peers in the Catholic 
faith, published in a religious document. It was not a statement of his 
legal views.
  A fair reading of the article would show a support for the equality 
of women. I have read it a number of times. And by the way, if it comes 
down to a choice between St. Paul and my distinguished friend from 
Massachusetts, Senator Kennedy, or my distinguished friend from 
Illinois, Senator Durbin, I think I will take St. Paul every time, and 
I think most everybody else in the country would, too. He and his wife 
were quoting St. Paul.
  We have even had some indications that St. Paul was out of whack. Not 
according to the Bible, in which I think most of us claim to believe. I 
will choose St. Paul every time. By the way, the article is why only 
males in the Catholic Church hold the priesthood. If one reads it 
fairly, that is what he was driving home. If one reads it fairly, one 
will find he was very fair to women and treated them equally, as his 
partners. Democratic women in his law firm whom he mentored and tutored 
and helped and worked with and works with today have testified through 
letters to us that they trust him, believe in him. Even though they 
differ with his views in some matters, they know he will follow the law 
because they know he is devoted to the law.
  We ought to be able to give some credibility to people of that 
quality who get the highest possible rating by the American Bar 
Association. That is not always totally dispositive, I have to admit, 
but it certainly adds to the belief of those of us who support this man 
and the Democrat people down there who also support him. Mr. Holmes 
enjoys the support of numerous women in Arkansas, including coworkers 
and colleagues who know him best.
  There is a charge against Mr. Holmes. Holmes does not have the 
temperament to be a Federal judge, some have said. He has said that 
rape occurs with the same frequency as snow in Miami and compared 
abortion to the Holocaust.
  He has openly apologized for his 27-year-old rhetoric:

       The sentence about rape victims which was made in a letter 
     to an editor in 1980 is particularly troublesome to me from a 
     distance of 23 years later.

  He goes on to say:

       Regardless of the merits of the issue, the articulation in 
     that sentence reflects an insensitivity for which there is no 
     excuse and for which I apologize.

  That is a written response to Senator Durbin. We cannot take his word 
for that? He was 27 years old, a fervent believer in the pro-life 
cause. Arkansans holding strong pro-choice views uniformly attest that 
Holmes will set aside any personal beliefs and follow the law while on 
the bench.
  Holmes' ``well-qualified'' rating shows he is at the top of the legal 
profession in his legal community. He has outstanding legal ability, 
but listening to the arguments today, one would think he is a total 
malcontent who does not believe in the law. He has a breadth of 
experience and the highest reputation for integrity. He has 
demonstrated or exhibited the capacity for judicial temperament.
  There is a charge that Holmes does not believe in the separation of 
church and State. He said this:

       Christianity in principle cannot accept subordination to 
     the political authorities,

[[Page S7563]]

     for the end to which it directs men is higher than the end of 
     the political order.

  That is what they say. He quoted him, so he must not believe in the 
separation of church and State. But what did he say? Holmes was 
contrasting Christianity with the pagan religions about which Aristotle 
wrote in which religious activities are political concerns. The speech 
makes the point that Christianity looks to an ultimate source of 
authority beyond Earthly authority, and that is God.
  I mean, give him a break.
  Holmes notes that the model of assigning religious and political 
matters to separate spheres is favored by modern liberalism, including 
John Locke, Thomas Jefferson, and Alexis de Tocqueville, and the modern 
Catholic Church. He urges us not to miss the strengths of de 
Tocqueville's argument that the church is stronger when separate from 
the State. Holmes offers his own theological grounds for the separation 
of church and State, and yet one would think he was not.
  Another charge is that Holmes is unwilling to recuse himself from 
cases involving anti-abortion organizations or abortion matters. He has 
pledged that:

       In any case in which litigants were concerned about my 
     fairness and impartiality, or the appearance of impropriety, 
     I would take those concerns seriously. I would follow 28 
     U.S.C. Section 455 and the Code of Conduct for United States 
     Judges when making recusal decisions.

  He would follow the law. He will abide by the same standards of 
conduct that govern every Federal judge.
  Since the issue of natural law has been raised in discussing Mr. 
Holmes' nomination, I want to set the record straight.
  Some have expressed concern that Mr. Holmes seems to be a believer in 
natural law and will allow those beliefs to influence his rulings on 
the bench. The facts show otherwise.
  When asked if he believes that the Declaration of Independence 
establishes or references rights not listed or interpreted by the 
Supreme Court to be in the Constitution, Mr. Holmes wrote:

       I do not believe the Declaration of Independence 
     establishes judicially enforceable rights.

  Instead, he wrote:

       The Constitution as a whole is aimed at securing the rights 
     described as unalienable by the Declaration of Independence.

  Mr. Holmes noted that:

       Working all together, the entire system of government 
     should . . . result in a free country, a country without 
     tyranny, which, in the terms that the founders used, is 
     equivalent to saying a country in which natural rights 
     generally are respected.

  Mr. Holmes, however, cautions:

       [T]here is no constitutional authority for the courts to 
     use the Declaration of Independence to overrule the 
     Constitution. The authority of the courts is granted by the 
     Constitution, not the Declaration.

  He also wrote:

       No one branch of government can appeal to natural rights as 
     a basis for exceeding or altering its authority under the 
     Constitution.

  Rather, he writes:

       [w]hen citizens believe that natural rights are not 
     safeguarded adequately by the present system of government, 
     they may express that view in the electoral process, or they 
     may seek to amend the Constitution pursuant to Article V.

  Mr. Holmes has demonstrated, and his record demonstrates, that once 
he dons the robes of a judge, he will set aside those beliefs and 
follow the law as it is stated. Mr. Holmes understands key differences 
between an advocate and a judge, and that personal views play no role 
in the duty of a judge to abide by stare decisis and apply the 
precedent of the Supreme Court and Eighth Circuit. For those reasons, I 
believe that Mr. Holmes will make an outstanding Federal district 
judge.
  I close by yielding my last few minutes to Senator Pryor, a Member of 
the Senate who knows Mr. Holmes the best. I believe we ought to listen 
to the Senator from Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized for 1 
minute.
  Mr. PRYOR. Mr. President, how much time do we have remaining?
  The PRESIDING OFFICER. There is 58 seconds remaining.
  Mr. PRYOR. I will be brief.
  Earlier today, I read from 23 different letters of people from 
Arkansas, lawyers who practice with him, who support him. Many of these 
statements are inflammatory. I admit that. He admits that. He has 
apologized. Many of these were done 15, 20, in one case 24 years ago.
  I hope we will tone down the rhetoric. If Senators vote for Leon 
Holmes, they are not antiwoman. If Senators vote against him, certainly 
they are not anti-Catholic. Let us have a straight up-or-down vote.
  I encourage all of my colleagues to vote for Leon Holmes. Over and 
over, people in Arkansas who know him, who repeatedly say they do not 
agree with him on many of these issues, think he will be a fair, 
impartial, and an excellent member of the bench.
  I ask my colleagues for their consideration.
  The PRESIDING OFFICER. All time has expired.
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of J. Leon Holmes, of Arkansas, to be United States District Judge for 
the Eastern District of Arkansas?
  The clerk will call the roll. The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski), is necessarily absent.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 51, nays 46, as follows:

                      [Rollcall Vote No. 153 Ex.]

                                YEAS--51

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Inhofe
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Nelson (NE)
     Nickles
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich

                                NAYS--46

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Warner
     Wyden

                             NOT VOTING--3

     Edwards
     Kerry
     Murkowski
  The nomination was confirmed.
  Mr. GRASSLEY. I move to reconsider the vote and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________