[Congressional Record Volume 151, Number 43 (Wednesday, April 13, 2005)]
[Senate]
[Pages S3506-S3508]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL NOMINEES

  Mr. CHAMBLISS. Mr. President, I rise this morning to discuss an issue 
that is very dear to my heart. I practiced law for 26 years before I 
came to Congress and I had the pleasure of trying many cases before any 
number of judges, both at the State and Federal level, and I am very 
much concerned about what is happening with our judiciary today. For 
the last 2 years, I served on the Senate Judiciary Committee and have 
observed what obviously happened during those 2 years, but during the 
last few months, as we entered into this new session and approached the 
confirmation of nominees who are being put forward by the President, I 
remain concerned about some things that are happening.
  I will start by noting again that never before in the history of the 
Senate has a minority of 41 Senators held up confirmation of a judicial 
nominee where a majority of Senators has expressed their support for 
that nominee. It is for this reason, if given the opportunity, I will 
vote in favor of changing our rules to allow confirmation of a judicial 
nominee by a simple majority because under the Constitution of the 
United States, the Senate is required to give its advice and consent to 
the President on his judicial nominees.
  The Senate can say no in regard to any particular nominee, but to do 
so we need an up-or-down vote to decide what advice we give the 
President. Failing to answer the question is shirking our 
constitutional role in the separation of powers scheme. The 
Constitution spells out in certain areas, such as passage of 
constitutional amendments and ratification of treaties, where more than 
a simple majority of Senators is required. Confirmation of judges is 
not one of these areas.
  The Senate rules have changed on several occasions over the years as 
to whether and in what circumstances a filibuster is allowed, but we 
have, unfortunately, come to a point in time where the filibuster is 
being abused to hold up judicial nominees on which we are required to 
act; that is, to say yes or no. I believe it is in violation of the 
Constitution.
  I want to take a point in fact relative to the circuit in which I 
practiced for a number of years, and that is what is happening today 
with regard to the judicial nominee to the Eleventh Circuit Court of 
Appeals. The Democrats have held up confirmation of the only nominee 
President Bush has made to the Eleventh Circuit Court which handles 
Federal appeals in my home State of Georgia as well as Alabama and 
Florida.
  As a result, on February 20 of last year, President Bush exercised 
his constitutional authority to make a recess appointment of Judge Bill 
Pryor, the former attorney general of the State of Alabama. This recess 
appointment is temporary in nature, but President Bush has renominated 
Judge Pryor in the 109th Congress for a permanent position on the 
Eleventh Circuit Court of Appeals.
  As a former member of the Senate Judiciary Committee, I know we need 
to review with great care the qualifications of judicial nominees to 
ensure

[[Page S3507]]

that they have established a record of professional competence, 
integrity, and the proper temperament for judicial service. I intend to 
vote for confirmation of Judge Pryor's nomination to the Eleventh 
Circuit for the following reasons: Since his recess appointment, Judge 
Pryor has gained the respect of his colleagues on the Eleventh Circuit 
without regard to political persuasions. This is no surprise to me 
because Judge Pryor is a tremendously selfless public servant who has 
worked very hard to help others both within and outside the scope of 
his official duties.
  In private life, he established a program called Mentor Alabama which 
provides adult role models for at-risk children, and he has personally 
acted as such a mentor. In his service as attorney general for the 
State of Alabama, Bill Pryor established a record of evenhanded 
enforcement of the law. A noteworthy example of his fairminded 
treatment of his public duties is his enforcement of Alabama abortion 
laws. Bill Pryor is personally opposed to abortion based on his deeply 
held faith as a Roman Catholic. However, in 1997, the Alabama 
Legislature enacted a ban on partial birth abortion that did not 
comport with the Supreme Court's decision in Planned Parenthood v. 
Casey. The Alabama statute prohibited abortions prior to as well as 
following viability of the fetus. Attorney General Pryor ordered law 
enforcement officials to enforce the law only insofar as it was 
consistent with the Supreme Court's precedents which encompassed only 
postviability situations. In so doing, he adopted the narrowest 
possible construction of the Alabama statute.

  Moreover, in the wake of September 11, 2001, many abortion clinics 
were receiving letters with threats of anthrax exposure. In response, 
Attorney General Pryor held a press conference in which he asserted 
that the Alabama law ``provides stern felony penalties for those who 
now prey upon the public anxiety over fears of anthrax and other 
potential dangers. We warn anyone who is tempted to do so that their 
deeds are not a joke and will not be treated as mild misbehavior, but 
as a despicable crime against their fellow citizens that will not be 
tolerated.'' At this crucial time in history, Bill Pryor's statement 
sent a clear message that anthrax threats against abortion clinics 
would be prosecuted vigorously.
  Despite his personal religious convictions, Bill Pryor has a keen 
knowledge of the Constitution's requirement that the Government make no 
law respecting the establishment of religion or prohibiting the free 
exercise thereof.
  In Chandler v. Siegleman, as attorney general he persuaded the 
Eleventh Circuit to vacate a district court injunction that prohibited 
student-initiated prayers in school. Acknowledging the constitutional 
distinction between student-led prayers and teacher-led prayers, Bill 
Pryor refused to argue on appeal in favor of the constitutionality of 
teacher-led prayers as was the position of then Alabama Governor Fob 
James. In addition, General Pryor rejected Governor James' suggestion 
that the State of Alabama argue that the first amendment was never 
incorporated by the 14th amendment and thus does not apply to the 
States.
  In sum, Bill Pryor has established an impressive record as a fair, 
diligent, and competent public servant. His nomination to the Eleventh 
Circuit enjoys strong bipartisan support in his home State of Alabama, 
and in my home State, our attorney general, the Honorable Thurbert 
Baker, a Democrat, has written in support of Bill Pryor's nomination.
  I urge my Democratic colleagues to stop holding up the confirmation 
of President Bush's only nominee to the Eleventh Circuit by voting to 
move forward with Judge Pryor's nomination when it reaches the floor.
  Now let us look at another circuit. I just explained what the 
situation is with the Eleventh Circuit. Opposition to some of President 
Bush's nominees in other areas of the country such as the Ninth Circuit 
strikes me as odd because it directly contradicts what some Democrats 
have said in the past about the concept of balance on the courts.
  My friend from the other side of the aisle, the senior Senator from 
New York, acknowledged a couple of years ago in a speech on the Senate 
floor that the Ninth Circuit was ``by far the most liberal court in the 
country.''
  To quote from the Congressional Record of March 13, 2003, Senator 
Schumer stated:

       I believe there has to be balance, balance on the courts. 
     And I have said this many times, but there is nothing wrong 
     with a Justice Scalia on the court if he is balanced by a 
     Justice Marshall. I wouldn't want five Scalias, but one might 
     make a good and interesting and thoughtful court with one 
     Brennan. A Rehnquist should be balanced by a Marshall.

  Four of President Bush's nominees to the Ninth Circuit--Richard 
Clifton, Jay Bybee, Consuelo Callahan, and Carlos Bea--have been 
confirmed and are now sitting on the Ninth Circuit. That is the good 
news. But Democrats refused to give an up-or-down vote to two of 
President Bush's nominees to the Ninth Circuit, or one-third of the 
judges he has nominated. When one considers that 14 out of the 26 
active sitting judges on the Ninth Circuit Court of Appeals were 
appointed by President Clinton and 2 of them were confirmed in the last 
year of his Presidency, the Judiciary Committee and the Senate in 
general treated President Clinton fairly with respect to the Ninth 
Circuit. Moreover, of the 28 total seats on the Ninth Circuit, 17 were 
Democratic nominees, 14 by President Clinton and 3 by President Jimmy 
Carter.

  We now have two remaining seats on the Ninth Circuit to fill, and we 
have seen two nominees from President Bush to fill these seats. The 
fairness that the Senate showed President Clinton's nominees has not 
been applied to all of President Bush's nominees, as the two nominees, 
Carolyn Kuhl and Bill Myers, have been filibustered despite their 
tremendous qualifications.
  President Clinton had 8 years in office and was able to put in over 
half the active judges on the Ninth Circuit Court of Appeals. I might 
add that some of these active judges turned out to be activist judges. 
But with due respect to my colleagues on the other side, it is time to 
balance out 17 Clinton and Carter nominees with qualified individuals 
such as Carolyn Kuhl and Bill Myers. That is the kind of balance we 
need on the Ninth Circuit.
  One of the reasons the Ninth Circuit needs some balance is the 
outrageous nature of some of the decisions coming from that bench. For 
example, in the 1996-1997 term, Judge Reinhart, a Carter appointee, was 
overturned six times in cases where he was the author of the majority 
opinion.
  To cite specific examples of outrageous cases of judicial activism, 
the Ninth Circuit Court of Appeals has, first, barred children in 
public schools from voluntarily reciting the Pledge of Allegiance--that 
was in Newdow v. U.S. Congress, a 2002 case; second, initially barred 
California from holding a gubernatorial recall election notwithstanding 
a clear State statutory scheme and widespread popular support, which 
was a 2003 decision in the case of Southwest Voter Registration 
Education Project v. Shelley; third, invented a constitutional right to 
commit suicide, a 1996 decision, Compassion in Dying v. Glucksberg; and 
fourth, made it far more difficult to prosecute those who give material 
support to foreign terrorist organizations, the case of Humanitarian 
Law Project v. U.S. Department of Justice, a 2003 case.
  Also, this court struck down California's three strikes criminal 
sentencing law in the case of Andrade v. California in 2001 and only 
implemented the Supreme Court's reversal of that decision by a divided 
panel with Judge Reinhardt upholding the defendant's sentence only 
under the Supreme Court's ``compulsion'' and Judge Pregerson stating 
that ``in good conscience'' he could not follow the Supreme Court's 
decision.
  Lastly, that court held that a foreign national criminal apprehended 
abroad pursuant to a legally valid indictment was entitled to sue the 
U.S. Government for money damages, a 2003 case, Alvarez-Machain v. 
United States.
  I could go on, but there is no small wonder, then, that even Senator 
Schumer has stated:

       The Ninth Circuit is by far the most liberal court in the 
     country. Unless this is the kind of activist court that 
     Democrats want to preserve, it's time to at least allow an 
     up-or-down vote on nominees like Carolyn Kuhl and Bill Myers 
     to restore some balance.

  There have been two issues that have been raised by the other side 
during the debate and the filibuster by the

[[Page S3508]]

other side of the aisle relative to the judicial nominees sent up by 
the President. One of those is the fact that filibustering Federal 
judges is not something that is new, and it is a contention of the 
other side of the aisle that Republicans initiated a filibuster on the 
nomination of Judge Abe Fortas back in the Johnson administration. I 
will once again set the record straight relative to exactly what 
happened, and I will quote because I want to make sure that we get this 
exactly right. This is from a statement made by the former chairman of 
the Judiciary Committee, Senator Orrin Hatch, in some remarks that were 
made on the Senate floor on March 1, 2005. Senator Hatch stated as 
follows:

       Some have said that the Abe Fortas nomination for Chief 
     Justice was filibustered. Hardly. I thought it was, too, 
     until I was corrected by the man who led the fight against 
     Abe Fortas, Senator Robert Griffin of Michigan, who then was 
     the floor leader for the Republican side and, frankly, the 
     Democratic side because the vote against Justice Fortas, 
     preventing him from being Chief Justice, was a bipartisan 
     vote, a vote with a hefty number of Democrats voting against 
     him as well. Former Senator Griffin told me and our whole 
     caucus there never was a real filibuster because a 
     majority would have beaten Justice Fortas outright. Lyndon 
     Johnson, knowing that Justice Fortas was going to be 
     beaten, withdrew the nomination. So that was not a 
     filibuster. There had never been a tradition of 
     filibustering majority-supported judicial nominees on the 
     floor of the Senate until President Bush became President.

  I think that factual statement by Senator Hatch says it all relative 
to any issue concerning the contention that this is not the first time 
we have seen filibusters on the floor of the Senate. As we move into 
the consideration of these judges for confirmation, I am not sure what 
is going to come out from the other side.
  I have great respect, first of all, for this institution in which we 
serve. I am very humbled by the fact, as is every one of the 100 
Senators here, that our respective States have seen fit to send us here 
to represent them. But as I traveled around the country last year, 
campaigning for President Bush, as well as for Senate nominees, I 
continuously heard from individuals--whether it was in a formal 
gathering or whether it was in an informal gathering such as, on a lot 
of occasions, being in airports, or sometimes even walking down the 
street--it was unbelievable the number of Americans, and I emphasize 
that these were not Republicans or Democrats in every instance, they 
were just Americans who were very much concerned about what is 
happening with respect to the judicial nominees on the floor of the 
Senate.
  The PRESIDENT pro tempore. The Senator now has 2 minutes left, at 
which time there will be 10 minutes left for the majority.
  Mr. CHAMBLISS. I thank the Chair.
  This body has a number of rules which have been in place for decades. 
Those are good and valid rules and need to be followed in most 
instances. But there comes a time when you have to look the American 
people in the eye and say: I know Americans sent a majority party to 
the Senate, and I know you want us to carry out the will of the 
American people but, unfortunately, even though it only takes 51 votes 
to confirm one of President Bush's judicial nominees, we have a Senate 
rule that says you have to have 60 votes before you get to the point 
where you only have to have 51 votes. It doesn't take a Philadelphia 
lawyer to figure out something is wrong with that rule, and it needs to 
be corrected.
  As we move into the consideration of these judges, I hope we will 
reach an accord so the integrity of this institution will be 
maintained. Hopefully, our rules can be maintained intact. But it is 
imperative we do the will of the American people, which is move toward 
the confirmation of the President's judicial nominees as required by 
the Constitution of the United States.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Virginia.

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