[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
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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.
____________________