[Congressional Record Volume 155, Number 171 (Wednesday, November 18, 2009)]
[Senate]
[Pages S11509-S11511]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF DAVID HAMILTON

  Mr. SESSIONS. Mr. President, I thank Senator Cantwell. I appreciate 
her courtesy. I just want to share a few remarks tonight.
  We are now postcloture on the nomination of Judge David Hamilton to 
the circuit court of appeals. Cloture is a procedure in the Senate 
generally used to end a prolonged debate. The majority leader, Senator 
Reid, filed cloture on Judge Hamilton, however, before there had been 
even 1 hour of debate on the nomination. The cloture motion was filed 
before I or any of my colleagues had time set aside and had the 
opportunity to debate this matter.
  Judge Hamilton's judicial philosophy and record as a district judge 
were problematic. There are important matters involved considering the 
fact that President Obama has nominated him to serve on the Court of 
Appeals for the Seventh Circuit. It is worthy of serious consideration, 
this lifetime appointment.
  Yesterday, 28 Senators joined me in voting against cloture. I believe 
they voted no on cloture for a number of reasons. The first is the one 
I have just mentioned. Cloture is generally reserved to end a prolonged 
debate, and Senator Reid filed cloture without any debate, before 
debate had really begun.
  The second is that Judge Hamilton's judicial philosophy is outside 
the mainstream--I think well outside the mainstream. As I have said 
before, if a judge is not committed to following the law whether they 
like it or not, then that person is not qualified to be a judge. They 
may be a good advocate, but a judge must, by definition, be impartial.
  I think there will be more people voting against Judge Hamilton's 
nomination than voted against cloture--the 29 who voted yesterday. I 
think we need to spend some time talking about his record and his 
judicial philosophy.
  I do not have anything against Judge Hamilton. I understand he may be 
a fine person, and I really mean that. But there is afoot in this 
country a philosophy of judging, an approach to law that I think is 
dangerous and strikes at the very heart of the classical American 
judicial philosophy and legal system that has served us so well. So 
that is what this is about. If judges have the wrong philosophy as they 
approach the bench about how they should go about deciding cases, then 
that can disqualify them.
  As Senators, we each have a right to express our opinion on whether 
we believe a nominee is qualified and should be confirmed or not 
elevated to a higher court, but the American people expect we will not 
misrepresent the facts. Let's be fair to this nominee, and let's not in 
any way misrepresent who he is and what he did and what his philosophy 
is. I intend to be fair to him. I think any nominee is entitled to 
that. Even though I might be a critic, I should not be inaccurate in 
what I say.
  In this case, I think the facts have been misrepresented by others, 
and I want to correct the record on some of the issues, where it has 
been suggested that I or others have been incorrect or unfair in our 
criticism. Accuracy goes both ways. If you are for a judge and want to 
move him forward, OK, let's be accurate. Those who are opposed to him, 
you must be restrained and accurate also.
  Yesterday on the floor of the Senate, the majority leader, Senator 
Reid, invoked the Golden Rule. He said that when he became majority 
leader, he sought to ``treat [President Bush's] judicial nominees the 
way they would want them treated if the roles were reversed.''
  Let's take a look at the way President Bush's judicial nominees were 
treated by the Democratic majority. Senator Reid complained that Judge 
Hamilton, the judge before us tonight--tomorrow--waited 166 days for 
this vote. If Republicans followed Senator Reid's version of the Golden 
Rule, would he have been confirmed earlier? No. Judge Hamilton would 
have waited at least another year and a half before he received 
consideration on the Senate floor. That is exactly how President Bush's 
nominees were treated for the first group of nominees he submitted to 
the circuit courts.
  Priscilla Owen, a fabulous judge at the Supreme Court of Texas, John 
Roberts, now on the Supreme Court of the United States, and Deborah 
Cook all waited 2 years before receiving a confirmation vote.
  Yesterday Senator Reid said:

       It's really unfortunate we have to file cloture on a judge.

  Really unfortunate that we have to file cloture on a judge? As if 
this was something that had never been done before. Indeed, during the 
Bush administration, cloture had to be filed on at least 17 different 
judicial nominees because Senator Reid was leading filibusters himself. 
The majority leader complains he could not get a time agreement. But he 
never offered a reasonable amount of time. I believe there were 
discussions about 30 hours of debate, which was rejected. Senator Reid 
said he was stunned that some people believed there was not enough time 
to debate the nomination when no debate had been had.
  He accused Republicans of not entering into a time agreement. But as 
I said Monday, Senator Reid has a short memory. When Senator Reid was 
in the middle of filibustering Priscilla Owen, Senator Bennett made a 
unanimous consent request that the Senate spend 10 hours more debating 
the nomination and then vote. Senator Reid objected. When Senator 
Bennett asked how much time would be sufficient to debate the Priscilla 
Owen nomination, Senator Reid responded by saying:

       [T]here is not a number of [hours] in the universe that 
     would be sufficient.

  Later Senator McConnell sought a time agreement on Judge Owen. 
Senator Reid responded by saying:

       We would not agree to a time agreement . . . of any 
     duration.

  Yesterday Senator Reid said:

       The Democratic majority in the Senate confirmed three times 
     as many nominees [under President Bush] as we have been able 
     to confirm in the same amount of time under President Obama.

  Senator Reid left out the fact that Democrats filibustered more than 
three times as many nominees under President Bush. Indeed, there were 
30 cloture votes on 17 different judicial nominations during the Bush 
administration. There were 1,044 total votes

[[Page S11510]]

against two filibustered President Bush's nominees. The Democrats, 
under Senator Reid's leadership, cast 99.9 percent of those votes.
  Yesterday Senator Reid talked about the Senate and the legal 
precedent and advocated that Republicans follow Senate precedent in 
judicial confirmations. Ironically, that is exactly what Senate 
Republicans asked Senator Reid to do during the Bush administration. 
There had been 214 years of precedent of not filibustering judges. Yet 
Senator Reid voted more than 20 times to filibuster President Bush's 
judges. Everyone knows that in a court of law, you follow the most 
recent precedent, and the most recent precedent was established last 
time in the Bush administration by the Democrats in this body.
  Yesterday Senator Reid also said the following:

       I want to reiterate that every Senator may vote for or 
     against Judge Hamilton's nomination as he or she sees fit. 
     That's what we do here, but that is not the issue before us 
     today. The question before us is whether the President of the 
     United States deserves to have his nomination reviewed by the 
     Senate as the Constitution demands he does.

  The fact is that Senator Reid did not feel that way about Terrence 
Boyle who was nominated by President Bush for the Fourth Circuit Court 
of Appeals and languished for close to 8 years without ever receiving a 
confirmation vote, even though he passed out of the Senate Judiciary 
Committee with a majority vote. He did not feel that way about 
President Bush's nominee, the superb legal mind of Miguel Estrada, 
unanimously voted well qualified by the American Bar Association. He 
was filibustered through seven cloture votes and was never confirmed, a 
fabulous nominee to the court of appeals and one capable of being on 
any short list for the Supreme Court. Or what about Charles Pickering 
who was filibustered and never confirmed; Carolyn Kuhl who was 
filibustered and never confirmed; William Myers who was filibustered 
and never confirmed; Hanry Saad who was filibustered and never 
confirmed; William Haynes who was filibustered and never confirmed?
  What Senator Reid meant to say was: Do not do unto me as I have done 
unto you. You get it? Do not do unto me as I did to you.
  I don't believe Senator Reid or President Obama would wish for us to 
return to the Democratic version of the Golden Rule. I don't believe we 
intend to do that. Republicans have not held a private retreat to 
figure out how to change the ground rules and to block President 
Obama's nominations. That is what the Democrats did. It was reported in 
the New York Times. We have not taken orders from outside groups to 
block nominees. We have not blocked nominees because we do not want 
them to sit on a specific case, and we had some of that in the past. We 
have not attempted to filibuster a nominee in the Judiciary Committee. 
We let them go through. That is how President Bush's nominees were 
treated. I am not exaggerating. I was there. Those are the facts.
  I will express my opinion in more detail when I vote against Judge 
Hamilton. I have a right to do that, as does every Member. But I do not 
have a right to misrepresent the facts, and I try to be accurate in 
what I say. If I am in error, I look forward to being corrected. I hope 
my colleagues will start making an effort to do that.
  The way this happened was this: After President Bush was elected, the 
Democrats met with Marcia Greenberg and Lawrence Tribe and Cass 
Sunstein. They came up with a new idea. They said: We are going to 
change the ground rules. We no longer are not going to filibuster, as 
has been done in the history of the Senate. We are going to do anything 
we can to block in committee and on the floor good nominees.
  We had some fabulous nominees, such as Priscilla Owen, Bill Pryor. 
These are brilliant lawyers, proven people. They were rated highly by 
the American Bar Association. There was strong support in their home 
States and communities. They were blocked for months, even years before 
they could get a vote. Some got through, and some did not.
  My personal view is that the President deserves deference in his 
nominees. I fully expect and hope to be able to vote for 90 percent of 
President Obama's nominees. I voted for well over 90 percent of 
President Clinton's nominees. But I am not a rubberstamp. I am not 
going to vote for a judge who I believe, by virtue of their stated 
judicial philosophy, thinks a judge has the right to write footnotes to 
the Constitution, as Judge Hamilton has said, who blocks legislation 
for 7 years and has to be finally slapped down hard by the court of 
appeals because apparently he didn't appreciate the State of Indiana's 
passage of a law on informed consent. He kept that bottled up for 7 
years. And how much Indiana had to spend on legal fees, and how much of 
the will of the people was frustrated by one unelected, lifetime-
appointed judge I do not know, but it was significant.

  So those are the issues we will talk about in more detail. But I did 
want to set the record straight that I do not like not moving forward 
with a judge and giving them an up-or-down vote, but after the 8 years 
of President Bush and the repeated filibusters that occurred then, I 
have to agree with a number of my colleagues that, indeed, the 
Democrats did successfully change the standard in the Senate. We have 
to be careful about it. But they changed it to say that a filibuster is 
legitimate if you believe, according to the Gang of 14, there are 
extraordinary circumstances.
  To me, a person can be honest and have integrity, but if they 
believe, as a philosophical approach to the law, they have the ability 
to write footnotes to the Constitution, they have an ability to 
actually amend the Constitution through their decisions, when the 
Constitution itself provides only one method to amend the Constitution, 
then that makes the person one who is not qualified to be on the bench.
  So it is a big deal. We love the American legal system. I so truly 
admire it. It is based on a firm commitment to the rule of law. The 
oath judges take that they will impartially apply the law--not allow 
their personal views but impartially do it--that they will do equal 
justice to the poor and to the rich, that they will serve under the 
Constitution and laws of the United States--and not above them--that is 
the essence of it.
  I think a judge who cannot follow that oath they must take, one whose 
philosophy indicates they are not committed to that oath, is not 
qualified.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, this body often finds itself divided. But 
today we are united in our respect and affection for the senior Senator 
from West Virginia, Robert Byrd. I join with my colleagues in 
congratulating him on yet another historic milestone: becoming the 
longest serving Member of Congress.
  But I hasten to add that to salute Senator Byrd only for his 
remarkable longevity is to really kind of miss the point. The measure 
of a Senator is not just how many years he or she serves but the 
quality and the consequences of that service. That is where Senator 
Byrd has truly distinguished himself in Congress over the last 20,774 
days.
  The ``Almanac of American Politics'' says, Robert Byrd ``may come 
closer to the kind of Senator the Founding Fathers had in mind than any 
other.'' I could not agree more. He is a person of wise and mature 
judgment, a patriot with a deep love of country. He is passionately 
loyal to the Constitution, and a fierce defender of the role and 
prerogatives of Congress, the Senate in particular.
  Senator Byrd was once asked how many Presidents he has served under. 
He answered he had not served ``under'' any President, but he has 
served ``with'' 11 Presidents, as a proud Member of a separate and 
coequal branch of government.
  During his more than 56 years in Congress, Senator Byrd has witnessed 
many changes. Our population has grown by more than 125 million. There 
has been an explosion of new technologies. America has grown more 
prosperous, more diverse, more powerful.
  But across those nearly six decades of rapid change, there has been 
one constant: Senator Byrd's tireless service to his country, his 
passion for bringing new opportunities to the people of West Virginia, 
and his dedication to this branch of government, the U.S. Congress, and 
especially to this House of Congress, the U.S. Senate.
  Senator Byrd is a person of many accomplishments and a rich legacy. 
But,

[[Page S11511]]

above all, in my brief time today I want to focus on his commitment to 
improving K through 12 public education in the United States and 
expanding access to higher education, especially for those of modest 
means.
  As my colleagues know, Robert C. Byrd was raised in the hardscrabble 
coal fields of West Virginia. His family was poor but rich in faith and 
values. And his parents nurtured in young Robert Byrd a lifelong 
passion for education and learning.
  He was valedictorian of his high school class but too poor to go to 
college right away. Of course, that was in the days before Pell grants 
and loans and Byrd Scholarships. So he worked as a shipyard welder and 
later as a butcher in a coal company town. It took him 12 years to save 
enough money to even start college.
  He was a U.S. Senator when he later earned his law degree. No other 
Member of Congress before or since has started and completed law school 
while serving in the Congress.
  But degrees do not begin to tell the story of the education of Robert 
Byrd. He is the ultimate lifetime learner. It is like for the last 
seven decades he has been enrolled in the Robert C. Byrd School of 
Continuing Education.
  Senator Byrd's erudition has borne fruit in no less than nine books 
he has written and published over the last two decades. We all know 
that he literally wrote the book on the U.S. Senate--a masterful four-
volume history of this institution that was an instant classic that 
will bear the burdens of time. What my colleagues may not know is that 
he also authored a highly respected history of the Roman Senate. Now, 
there are some who think Robert Byrd served in the Roman Senate, but 
that part of the Byrd legend just is not so.
  I have talked at length about Senator Byrd's education because this 
explains why he is so passionate about ensuring every American has 
access to a quality public education--both K through 12 and higher 
education.
  One thing Senator Byrd and I have in common--and we always kind of 
talk about it when we get together--is we are the only two Senators 
whose fathers were actually coal miners. We are both the sons of coal 
miners, neither of whom had very much formal education. My father only 
went to the 8th grade. Actually, he only went to the 6th grade, but we 
will not get into that. But, anyway, he said he went to the 8th grade, 
but, like I said, I will not get into that. But coming from a poor 
background, Senator Byrd believes, as I do, that a cardinal 
responsibility of government is to provide a ladder of opportunity so 
everyone, no matter how humble their background, has a shot at the 
American dream.
  Obviously, the most important rungs of that ladder of opportunity 
involve education--beginning with quality K through 12 public schools, 
and including access to college, vocational education, and other forms 
of higher education.
  During my 25 years in this body, no one has fought harder for public 
education than Senator Robert Byrd. As the longtime chairman and still 
the senior member of the Appropriations Committee, he has been the 
champion of education at every turn--fighting to reduce class sizes, 
improving teacher training, bringing new technologies into the 
classroom, boosting access to higher education.
  In 1985, he created the only national merit-based college scholarship 
program funded through the U.S. Department of Education. Congress later 
named them in his honor. Originally, the Byrd Scholarships consisted of 
a 1-year $1,500 award to outstanding students. Today, Byrd Scholarships 
provide grants of up to $6,000 over 4 years.
  Senator Byrd is a great student of literature, and I am sure he knows 
The Canterbury Tales--a lot of it, probably, by heart. Describing the 
Clerk of Oxford, Chaucer might just as well have been describing Robert 
C. Byrd. Chaucer wrote:

       Filled with moral virtue was his speech; And gladly would 
     he learn and gladly teach.

  Senator Byrd is a great Senator and a great American. He has both 
written our Nation's history and left his mark on it. It has been an 
honor to serve with my friend, my longtime chairman, Senator Byrd, for 
the last 25 years.
  Today, as he reaches yet another historic milestone that no other 
Member of Congress has ever achieved--and I daresay probably no one 
ever will--we honor his service. And we express our respect and our 
love for this remarkable U.S. Senator.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.

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