[Congressional Record Volume 156, Number 93 (Monday, June 21, 2010)]
[Senate]
[Pages S5171-S5177]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SEPARATION OF POWERS
Mr. SPECTER. Mr. President, I have sought recognition to again alert
my
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colleagues to what I consider to be a very important matter, and that
is that the Supreme Court of the United States is materially changing
the traditional separation of powers and that, as a result, the
Congress of the United States continues to lose very substantial power
in the Federal scheme under the Constitution of the United States. This
is a theme I have submitted over the course of the last 30 years, since
1981, with the confirmation proceedings of Justice Sandra Day O'Connor.
And in now the 12th proceeding that I will personally have participated
in, I raise this issue again to urge my colleagues to take a stand.
The only opportunity we have to influence the process is through the
confirmation of Supreme Court Justices. But we have witnessed a series
of cases where instead of the traditional doctrine of separation of
power, there has been a very material concentration of power which has
gone principally through the Court and secondarily to the executive
branch.
The Framers put the Congress under Article I. It was thought at the
time the Constitution was adopted that Congress would be the foremost
branch representing the people. The executive branch is Article II, and
the judiciary branch is Article III. Were the Constitution to be
written today, I think we would find the course inverted. But what we
have seen here is that recent decisions of the Supreme Court have
abrogated the traditional deference given by the judicial branch to
findings of fact and the determination of public policy arising from
what Congress finds in its extensive legislative hearings, with the
Court substituting its judgment with a variety of judicial doctrines.
During the confirmation process where we examine the nominees, we
continue to receive lip service about congressional authority but, once
confirmed, we find that the nominees have a very different attitude and
engage in very substantial jolts to the constitutional law in effect.
The generalized standard for what would be the basis for upholding an
act of Congress was articulated by Justice Harlan in Maryland v. Wirtz
in 1968 interpreting the commerce clause, saying:
Where we find that the legislation as a rational basis for
finding a chosen regulatory scheme necessary to the
protection of commerce, our investigation is at an end.
That is the general legislative standard which had been adopted by
the Court in reviewing acts of Congress until the case of City of
Boerne v. Flores in 1997. There, the Supreme Court adopted a new
standard. They articulated it as congruence and proportionality, with
the Supreme Court of the United States reviewing the act of Congress to
decide whether it was congruent and proportional to what the Congress
sought to achieve, and that entailed an analysis of the record, giving
very little deference to what Congress had found.
On its face, the standard of congruence and proportionality suggests
that the Court can come out anywhere it chooses. That was the view of a
very strong dissent by Justice Scalia in a subsequent case, where he
said:
The congruence and proportionality standard, like all such
flabby tests, is a standing invitation to judicial
arbitrariness and policy-driven decisionmaking.
So that when you take a standard of that sort and undercut the
traditional deference to congressional fact-finding, you end up with
the Court making law instead of interpreting law. Under that decision,
we have seen a whole torrent of Supreme Court decisions declaring acts
of Congress unconstitutional. Illustrative are the Morrison case,
involving the Violence Against Women Act, the Garrett case under the
Americans With Disabilities Act, and repeatedly the issue was undercut.
As a result, in the confirmation hearings, many of us--this Senator
included--sought to establish an understanding of a nominee's approach
to giving the deference to congressional findings. Illustratively--and
I have spoken on this subject before--Chief Justice Roberts and Justice
Alito used all the right language, but when we find the application of
the language, they have done a reverse course. Justice Roberts spoke
eloquently about the need for modesty and for the Court not to jolt the
system, but to follow stare decisis. With respect to fact-finding, this
is what Chief Justice Roberts had to say in his confirmation hearing:
I appreciate very much the differences in institutional
competence between the judiciary and the Congress when it
comes to basic questions of fact finding, development of a
record, and also the authority to make the policy decisions
about how to act on the basis of a particular record. It's
not just disagreement over a record. It's a question of whose
job it is to make a determination based on the record. . . .
[A]s a judge, you may be beginning to transgress into the
area of making a law . . . when you are in a position of re-
evaluating legislative findings, because that doesn't look
like a judicial function.
So there you have a very flat statement by the nominee saying that it
is not the Court's role to transgress into the area of lawmaking, which
is what does happen in reevaluating legislative findings.
Justice Alito said about the same thing. This is his testimony in his
confirmation hearing:
I think that the judiciary should have great respect for
findings of fact that are made by Congress. The judiciary is
not equipped at all to make findings about what is going on
in the real world--not these sort of legislative findings.
And Congress, of course, is in the best position to do that.
Congress can have hearings and examine complex social issues,
receive statistical data, hear testimony from experts,
analyze that and synthesize that, and reduce that to
findings. And when Congress makes findings on questions that
have a bearing on the constitutionality of legislation, I
think they are entitled to great respect.
The decision in Citizens United found the Court reversing recent
decisions in the Austin and McConnell cases. Instead of giving the
deference to the congressional findings, which was articulated by Chief
Justice Roberts and Justice Alito, they did an about-face.
In raising this consideration, I do not challenge the good faith of
Chief Justice Roberts or Justice Alito. I recognize and acknowledge the
difference between testifying in a confirmation hearing and what
happens during the course of a decision when deciding a specific case
in controversy. But when we take a look at what happened in Citizens
United--and again, this is a matter of the illustration--we have the
enormous record that was created by the Congress in enacting McCain-
Feingold and the findings of fact there to support what the Congress
did, which was invalidated by the Supreme Court of the United States in
Citizens United, which upset 100 years of precedent in allowing
corporations to engage in political advertising.
The scope and detail of the congressional findings were outlined by
Justice Stevens in his dissenting opinion in Citizens United. The
statement of facts by Justice Stevens on commenting on the record is
not a matter of disagreeing on opinions. People are entitled to their
own opinions but not to their own facts, as has been reiterated so
frequently. This is what Justice Stevens noted on the congressional
fact-finding:
Congress crafted in the McCain-Feingold legislation ``in
response to a virtual mountain of research on the corruption
that previous legislation failed to avert.'' The Court now
negates Congress's efforts without a shred of evidence on how
section 203 or its State law counterparts have been affecting
any entity other than Citizens United.
Justice Stevens said this to emphasize not only that the Court's
holding ran counter to outstanding congressional judgment but also
``the common sense of the American people,'' who have recognized a need
to prevent corruption from undermining self governing since the
founding and who have fought against the distinctive corrupting
potential of corrupt electioneering since the days of Theodore
Roosevelt.
Justice Stevens went on to point out that the record compiled in the
context of the congressional legislation was more than 100,000 pages
long. He noted that judicial deference is particularly warranted,
whereas here we deal with the congressional judgment that has remained
essentially unchanged throughout a century of legislative adjustment.
Now, as a result of what happened in Citizens United, we found that,
illustratively, Chief Justice Roberts did substantially differently
when on the Court in contrast with what he did in his confirmation
hearing. In the confirmation hearing, Chief Justice Roberts did
acknowledge that the act was a product of an ``extraordinarily
extensive legislative record.''
``My reading of the Court's opinion,'' Chief Justice Roberts went on,
``is that
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was the case where the Court's decision was driven in large part by the
record that had been compiled by Congress. The determination there was
based on the extensive record carrying a lot of weight with the
justices.''
The matter was particularly problemsome. As Justice Stevens noted:
The Congress relied upon the decision of the Supreme Court
in the Austin case.
Stevens noted that overruling Austin was especially significant
because Congress had specifically relied on that decision in drafting
the McCain-Feingold Act.
So essentially what you have here is relatively recent decisions by
the Supreme Court of the United States in Austin and McConnell. You
have a very extensive congressional record, which sets forth the
factors about the need to avoid corrupt practices and electioneering
brought about by money and, beyond the actual corrupt practices, the
appearance of corruption, and the legislative effort to set this kind
of a factual basis. And you have Justices in confirmation hearings
committing to respecting and being deferential to congressional
findings. But when the decision comes, 100 years of precedent is
overturned. You don't have a modest decision; you have a decision which
jolts the system.
It is a difficult matter where we proceed candidly as to where we go
beyond getting the most positive assurances we can from the nominees. I
suggest to my colleagues that when we begin the confirmation process
with Solicitor General Kagan next week, this should be a focus of
attention because what is happening is that the power of Congress is
being diluted. If you have legislative findings that go for 100,000
pages and then you have Justices who have under oath said that they
will give deference to congressional findings; you have Congress
enacting the McCain-Feingold law based upon the standards set by the
Supreme Court of the United States in the Austin case; you have the
relatively recent precedents of Austin and McConnell, for instance, the
Federal Election Commission; and then you have a case like Citizens
United coming down, that ought to be a sharp focus of attention.
My sense is that the reality is that this body and our counterpart
across the Rotunda pay relatively little attention to what the Supreme
Court of the United States does. They have the final say. It is often
noted that they are right only because they are final. When we have an
opportunity, through the confirmation process, to focus on these
issues, I suggest to my colleagues that it is high time we do so.
There is a second area where the authority of Congress has been very
materially undermined. It has been where the Supreme Court of the
United States declines to decide cases. We have a situation where the
Court hears and decides relatively few cases. This is against the
backdrop where, historically, the Supreme Court of the United States
decided many more cases. Going back to 1886, the Supreme Court of the
United States had on its docket 1,396 cases and decided 451 cases. In
1987, the Supreme Court issued 146 majority opinions. In 2006, less
than 20 years later, the Supreme Court heard arguments in only 78 cases
and handed down opinions in only 68 cases. A year later, 2007, the
Supreme Court heard arguments in 75 cases and handed down opinions in
only 67 cases. In 2008, arguments in 78 cases, decisions in 65 cases.
This is in a context where Chief Justice Roberts testified in his
confirmation hearing that he thought the Court ought to hear more
cases.
In a letter I will submit for the Record, there is a detailing of the
tremendous number of important circuit splits where the Supreme Court
of the United States does not decide which circuit is correct or you
have one circuit deciding a case one way or another circuit deciding a
case another way, and then the situation arises in yet a third circuit,
and there is no guiding precedent. There is confusion, and I suggest
that the Court really has the duty to take up these circuit splits and
make a definitive decision so that the law is clarified, so that
litigants and lawyers can know where the law stands on a specific case.
Stated simply and directly, the Court is not too busy to take up these
circuit splits.
There are other major cases where the Court declines to hear cases,
which I respectfully submit that the Court ought to hear. Illustrative
of one of the major constitutional conflicts in the history of the
United States has been the controversy over warrantless wiretaps. You
have the Foreign Intelligence Surveillance Act of 1978, which in very
emphatic terms says the exclusive way a wiretap may be obtained would
be through a warrant, where the Federal investigative authorities filed
an affidavit of probable cause with a Federal judge or a Federal
magistrate, and only after that permission is granted may the wiretap
be activated. That is to protect the very basis of privacy and the very
strong interdiction of the Fourth Amendment to the U.S. Constitution,
which prohibits unreasonable search and seizure.
It has been 5 years since it was disclosed that the executive branch,
under the so-called Terrorist Surveillance Program, was undertaking
warrantless wiretapping. The activity was being undertaken under the
contention that the President had power as Commander-in-Chief,
executive authority under Article II to disregard the act of Congress.
It is standard hornbook law. The Congress cannot legislate in
violation of the Constitution. But if, in fact, the President of the
United States, under certain circumstances, has the authority as
Commander-in-Chief to engage in conduct, Congress may not proscribe it,
may not eliminate it, may not limit the power of the President that the
President has under constitutional authority.
But 5 years have passed and there has been no decision in the case. A
Federal district court judge in Detroit declared the act
unconstitutional. The case was appealed to the Court of Appeals for the
Sixth Circuit, and in a 2-to-1 decision the court decided that there
was no standing, which is a popular doctrine for declining to hear a
case and ducking the issue.
I believe any fair analysis of the opinion of the court of the
dissenting opinion gave much additional weight to the dissenters or, in
any event, a very close question, one of paramount importance that
ought to have been decided by the Sixth Circuit.
The case was then taken to the Supreme Court of the United States,
which denied certiorari. Those issues are still very much in play.
In a case in the U.S. district court in San Francisco, Judge Vaughn
Walker has declared the act unconstitutional. It is questionable
whether that is a final ruling in the case. But the Supreme Court of
the United States, with as many law clerks as they have--four and five
each; many more than they have had in earlier days--and with the very
light docket they have, there is no reason that a case such as the
Terrorist Surveillance Program should not be adjudicated by the Supreme
Court so we would know what the law was on that subject.
Another case which I have spoken about on the floor of the Senate
involves the litigation brought by survivors of the September 11
attacks on the United States where some 3,000 people were killed. A
lawsuit was begun to get damages from the Government of Saudi Arabia,
from five Saudi princes, from a Saudi charitable organization which was
an instrumentality of the government, and other defendants.
The Congress of the United States in the sovereign immunity law
specifically decided that the sovereign should not have immunity in any
case where there was a domestic tort involved, such as the conduct
involved in 9/11.
The Court of Appeals for the Second Circuit decided the legislation
did not apply because it applied only in situations where a nation had
been declared a terrorist state. That exception is nowhere in the
statute. It had no place in the decision.
When application was made for certiorari to have the case considered
by the Supreme Court, the Solicitor General's Office, headed by
Solicitor General Kagan, took the position that the Second Circuit was
wrong but urged the Court not to take the case on the ground that there
were important foreign policy questions involved. Solicitor General
Kagan took the position that where no acts occurred within the United
States, the Foreign Sovereign Immunities Act did not apply.
Again, this reading was pulled literally out of thin air. Nothing in
legislative history or background would
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suggest that the victims of 9/11 ought not have a case against the
Government of Saudi Arabia and the princes and the charitable
organization, an instrumentality of the state. Under those
circumstances, no distinction between the acts occurred, but there was
plenty of repercussion and plenty of consequence from that tortious
conduct when America was attacked. Here the Supreme Court of the United
States has denied to hear the case, which leaves the Congress
subservient to the executive branch.
The business about being deferential to foreign powers, in my
judgment, is not an adequate basis for disregarding the legitimate
claims of the people who were killed on 9/11, not sufficient to
disregard the congressional enactment which held that there ought not
to be sovereign immunity where there is tortious conduct involved; that
the doctrine of sovereign immunity ought to apply to commercial
transactions but not to conduct such as was evidenced on 9/11.
Again, we have as an adjunct of what happens when the Court
disregards congressional findings. You have the action of the Court in
declining to hear cases such as the Terrorist Surveillance Program,
such as the litigation brought by the survivors of the victims of 9/11
where the authority of Congress is materially undercut.
There has been other action taken by the Supreme Court of the United
States. It is hard to pick the description which is sufficiently
forceful, whether it is surprising or whether it is astounding. But
litigation was brought in a case captioned McComish v. Bennett where
the district court in Arizona held that Arizona's Citizens Clean
Elections Act was unconstitutional.
In that case, the State of Arizona had decided to provide for
matching funds in order to deal with the problems of campaign
financing, trying to deal with the issues of corrupting influence of
money, both the fact of corruption and the appearance of corruption.
I am not going to take the time now to go through the long list of
cases where Members of Congress have been convicted of illegal campaign
contributions which rose to the level of being a quid pro quo and a
bribe. But the Federal district court in Arizona said the Arizona
legislation, captioned the Citizens Clean Elections Act, was not
supported by a compelling State interest, not narrowly tailored, and
not the least restrictive alternative and, therefore, was
unconstitutional under the First Amendment.
The Court of Appeals for the Ninth Circuit reversed saying there was
an ample record to support the legislative enactment.
On June 1 of this year, 20 days ago, the Supreme Court of the United
States denied an application to vacate the stay. The Court of Appeals
for the Ninth Circuit had stayed the decision of the district court so
that the Arizona elections could go forward pursuant to the Arizona
Citizens Clean Elections Act.
When the Ninth Circuit heard the case, the Ninth Circuit issued a
stay that stopped the carrying out of the district court decision on
unconstitutionality so that the elections in Arizona this year could
proceed under that act. The losing parties in the Ninth Circuit
decision then applied to the Supreme Court to eliminate the stay so the
district court opinion would remain in effect.
The Supreme Court, on June 1, denied the application to vacate the
stay ``without prejudice to a renewed application if the parties
represent that they intend to file a timely petition for a writ of
certiorari.''
A week later, the Court reversed course and granted the application
to vacate the stay on the district court's injunction ``pending filing
and disposition of a petition for writ of certiorari.''
This is complex legalese, but what it does is reinstate the
conclusion of the Federal district court in Arizona that the Arizona
law is unconstitutional and may not be enforced.
It is a little hard to fathom how the Court can do that without even
the filing of a petition for a writ of certiorari.
What we essentially have is the Supreme Court was deciding the
Arizona case without the submission of a petition for a writ of
certiorari, without following the rules of the Supreme Court for the
filing of briefs, or without an argument before a decision was made. It
has all the earmarks of a flagrant denial of due process of law.
It is true technically that the Supreme Court may reverse and remand
and enter judgment as they choose. But in a contest where the
procedures are established, in case after case the practice of the
Court--you want to have the Supreme Court of the United States review a
case? File a petition for writ of certiorari. Then you have to prepare
a brief, then you appear before the Court for argument, and then the
Court makes a determination, after hearing the case, what ought to be
done.
Here we have the Arizona elections disrupted by a conclusion of the
Supreme Court of the United States. It is not even a judgment. It is a
reinstatement of a stay.
We have the Supreme Court of the United States today on issues of
enormous importance--the election of Federal, State, and local
officials, an Arizona law trying to deal in a sensible way with the
problems of having candidates spend so much of their time on
electioneering. A recent study showed those of us in Congress spent
about 25 percent of our time on raising money. I think that is a fairly
realistic estimate. I think I saw an affirmative nod from the Presiding
Officer, the Senator from Virginia.
I would say that is not much off the mark from my own experiences. My
first campaign cost less than $2 million, and the last campaign cost
some $23 million. We all have offices away from our office so we comply
with the law which prohibits us from making telephone calls to raise
money or undertaking any of it on Federal property. It takes a lot of
time.
We have a number of former Members of Congress who are in jail today
across this land, and we have a lot of public skepticism about the
influence of money on congressional decisions. We had eight Members of
the House of Representatives in one of the Hill newspapers last week
about an investigation of a House Ethics Committee where there was an
appearance of some issue where votes were changed in the wake of
campaign contributions.
Here we have the Supreme Court eliminating the Arizona law without
even having a hearing in the case but reinstating the stay. That is a
subject I intend to ask Nominee Kagan about next week.
I have submitted a series of letters to Solicitor General Kagan, one
dated May 25, one dated June 15, and I am sending another one today,
and I ask unanimous consent to have printed in the Record the full text
of these letters.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, May 25, 2010.
Hon. Elena Kagan,
Solicitor General of the U.S.,
Washington, DC.
Dear Solicitor General Kagan: At our meeting on February 4,
2009, your confirmation for Solicitor General was pending
before the Senate. We discussed, among other things, two
cases that raise important questions about Executive-branch
incursions on Congress's law-making powers with respect to
the jurisdiction of the lower federal courts: Weiss v.
Assicurazioni Generali, S.P.A. (hereafter Generali), 529 F.3d
113 (2d Cir. 2010), and In re Terrorist Attacks on September
11, 2001, 538 F.3d 71 (2d Cir. 2008), cert. denied, 129 S.
Ct. 2859 (2009) (hereafter 9/11 Litigation). I write to
notify you of the topics I intend to cover at your upcoming
confirmation hearing with respect to these and related cases.
Holocaust Litigation (Generali)
This litigation was brought by victims of the Holocaust and
their heirs to recover on unpaid World War II-era insurance
policies issued by an Italian insurance company. Just a few
months ago, the United States Court of Appeals for the Second
Circuit affirmed the dismissal of the plaintiffs' claims on
the ground that they were preempted by an Executive-branch
foreign policy favoring the resolution of such claims through
an international commission. The Second Circuit did so in
reliance on the Supreme Court's decision in American
Insurance Association v. Garamendi, 539 U.S. 396 (2003).
There the Court held that this policy, though not formalized
in an executive agreement or treaty, preempted a state law
requiring insurers to disclose information about certain
Holocaust-era insurance policies. The Court relied on cases
addressing the preemptive effect of executive agreements
purporting to settle claims of private litigants in federal
courts. A post-Garamendi development of
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note is the Court's decision in Medellin v. Texas, 552 U.S.
491 (2008), where the Chief Justice suggested that the
executive branch could settle claims by executive agreement
only in the face of acquiescence by Congress.
I intend to ask you, among other questions:
(1) whether you understand the Supreme Court's case law to
require a finding of Congressional acquiescence as a
condition of giving preemptive effect to an executive
agreement;
(2) whether you agree with Justice Ginsburg's dissenting
opinion in Garamendi (joined by Justices Stevens, Scalia and
Thomas) that an Executive-branch foreign policy not
formalized in a treaty or an executive agreement cannot
preempt state law; and
(3) what considerations you would bring to bear in deciding
whether to vote to grant certiorari in this case, if
confirmed. (My office has been advised that a petition for
certiorari will be filed soon.)
9/11 Litigation
This litigation was brought by over 6,000 victims of the
September 11 terrorist attacks against, among other
defendants, the Kingdom of Saudi Arabia and five Saudi
princes. The plaintiffs pleaded various claims arising from
their allegation that the defendants financed the attacks.
None of these defendants, though, ever had to defend the case
on the merits. The United States Court of Appeals for the
Second Circuit ruled that they were immune from suit under
the Foreign Sovereign Immunities Act (FSIA). The plaintiffs
petitioned the Supreme Court for certiorari. You filed a
brief on behalf of the United States urging the Supreme Court
to deny the petition. The New York Times reported that your
filing came less than a week before President Obama's trip to
the Middle East to meet with Saudi Arabia's King Abdullah.
See Eric Lichtblau, ``Justice Department Backs Saudi Royal
Family on 9/11 Lawsuit,'' New York Times, May 30, 2009. The
Court denied the petition.
One of the two key questions in the petition was whether,
as the Second Circuit had held, the FSIA addressed the
immunity of the Saudi officials. There is, as you
acknowledged in your brief, a circuit split on the question:
Some circuits have concluded that the FSIA governs the
immunity of foreign officials, as distinct from foreign
states. Others have concluded that their immunity is governed
by non-statutory principles articulated by the Executive
branch. The United States argued that the split was not
worthy of the Court's review because the ``disagreement
appears to be of little practical consequence.'' In earlier
cases, however, the United States argued repeatedly that the
distinction is indeed of practical consequence in numerous
respects. And you have since filed a brief on behalf of the
United States in Samantar v. Yousuf (No. 08-1555) urging the
Court to hold that the FSIA does not displace ``principles
adopted by the Executive branch'' governing the immunity of
foreign officials.
The second of the questions raised was whether the
defendants could be sued under the FSIA's domestic tort
exception. That exception permits suits against sovereigns
arising from injuries ``occurring in the United States and
caused by the tortuous act or omission of the foreign
state.'' 28 U.S.C. 1605(a)(5). You argued in your brief that
the exception did not apply.
I intend to ask you, among other questions:
(1) whether you would have voted to grant certiorari in the
9/11 Litigation had you been sitting on the Court;
(2) whether the United States may have placed diplomatic
concerns above the rights of 9/11 victims in urging the Court
not to grant certiorari;
(3) whether the FSIA governs all questions of sovereign
immunity in the federal courts; and
(4) whether you believe that the FSIA's tort exception
should have been interpreted to confer immunity on the
defendants.
At our meeting on May 13, 2010, when we discussed your
confirmation for the Supreme Court, we discussed, among other
things, the constitutionality of the Terrorist Surveillance
Program (TSP), which brought into sharp conflict Congress's
authority under Article I to establish the `exclusive means'
for wiretaps under the Foreign Intelligence Surveillance Act
with the President's authority under Article II as Commander-
in-Chief to order warrantless wiretaps.
The TSP operated secretly from shortly after 9/11 until a
New York Times article detailed the program in December 2005.
In August 2006, the United States District Court for the
Eastern District of Michigan found the program
unconstitutional. In July 2007, the Sixth Circuit reversed 2-
1, finding lack of standing. The Supreme Court then denied
certiorari.
The dissenting opinion in the Sixth Circuit demonstrated
the flexibility of the standing requirement to provide the
basis for a decision on the merits. As Judge Gilman noted,
``the attorney-plaintiffs in the present case allege that the
government is listening in on private person-to-person
communications that are not open to the public. These are
communications that any reasonable person would understand to
be private.'' After analyzing the standing inquiry under a
recent Supreme Court decision, Judge Gilman would have held
that ``[the attorney-plaintiffs have thus identified concrete
harms to themselves flowing from their reasonable fear that
the TSP will intercept privileged communications between
themselves and their clients.''
I intend to ask you, among other questions, whether you
would have voted to grant certiorari in this case had you
been on the Supreme Court.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Washington, DC, June 15, 2010.
Hon. Elena Kagan,
Solicitor General of the United States,
Washington, DC.
Dear Solicitor General Kagan: By letter dated May 25, 2010,
I identified three subjects that I intend to cover at your
confirmation hearing. I write to identify four additional
subjects that I intend to cover.
The Supreme Court's workload
The Supreme Court's workload has steadily declined. In
1870, the Court decided 280 of the 636 cases on its docket;
in 1880, 365 of the 1,202 cases on its docket; and in 1886,
451 of the 1,396 cases on its docket. In 1926, the year
Congress gave the Court nearly complete control of its docket
by passing the Judiciary Act of 1925, the Court issued 223
signed opinions. The Court's output has declined
significantly ever since. In the first year of the Rehnquist
Court, the Court issued 146 opinions; in its last year, it
issued only 74.
Chief Justice Rehnquist's successor, John Roberts,
testified during his confirmation hearing that the Court
could and should take additional cases. But the Court has not
done so. During the 2005 Term, it heard argument in 87 cases
and issued 69 signed opinions; during the 2006 Term, it heard
argument in 78 cases and issued 68 signed opinions; during
the 2007 Term, it heard argument in 75 cases and issued 67
signed opinions; and during the 2008 Term, the Court heard
argument in 78 cases and issued 75 signed opinions. The
figures for the pending 2009 term will likely be in accord.
The Court continues to leave important issues unresolved.
They include, as noted in my May 25 letter, the
constitutionality of the Bush administration Terrorist
Surveillance Program (TSP) and the contours of the Foreign
Sovereign Immunity Act's domestic tort exception as applied
to acts of terrorism.
Equally significant are unresolved circuit splits. Two
prominent academic commentators note that the Roberts Court
``is unable to address even half'' of the circuit splits
``identified by litigants.'' Tracey E. George & Christopher
Guthrie, Remaking the United States Supreme Court in the
Courts' of Appeals Image, 58 Duke L.J. 1439, 1449 (2009).
Questions on which the circuits have split include: May
jurors consult the Bible during their deliberations in a
criminal case and, if so, under what circumstances? Must a
civil lawsuit predicated on a ``state secret'' be dismissed?
When may a federal agency withhold information in response to
a FOIA request or subpoena on the ground that it would
disclose the agency's ``internal deliberations''? Do federal
district courts have jurisdiction over petitions to expunge
criminal records?
I intend to ask you, among other questions:
(1) Whether you agree with the Chief Justice Roberts's
statement at his confirmation hearing that the ``Court could
contribute more to clarity and uniformity of the law by
taking more cases;''
(2) Whether the Court has the capacity to hear
substantially more cases than it has in recent years;
(3) Whether you favor reducing the number of Justices
required to grant petitions for certiorari in cases involving
circuit splits or otherwise; and
(4) Whether, if you are confirmed, you will join the
Court's cert. pool or follow the practice of Justice Stevens
(and the Justice for whom you clerked, Justice Thurgood
Marshall) in reviewing petitions for certiorari yourself with
the assistance of your law clerks?
Deference to Congressional factfinding in reviewing the
constitutionality of federal legislation
The constitutionality of federal legislation often turns on
how much deference the Supreme Court gives to justificatory
factual findings made by Congress. Recent nominees to the
Court have emphasized that such findings are entitled to
substantial deference. Chief Justice Roberts was especially
emphatic on the point. He even testified that when a judge
finds himself ``in a position of re-evaluating legislative
findings,'' he or she ``may be beginning to transgress into
an area of making law. . . .''
In too many cases during the last decade, however, the
Court has disregarded Congressional findings of fact to an
unprecedented degree. The most recent example was Citizens
United v. Federal Election Commission, 130 S. Ct. 876 (2010),
where in striking down the federal ban on independent
campaign expenditures by corporations, the Court disregarded
what Justice Stevens called in dissent a ``virtual mountain
of evidence'' assembled by Congress establishing the
corrupting influence of such contributions on the political
process. And the Court did so, again in Justice Stevens'
words, ``without a shred of evidence'' as to how the
challenged provision ``have been affecting any entity'' other
than the petitioner in the case.
The Court's disregard of Congressional factfinding has been
especially pronounced in cases striking down laws enacted to
remediate civil rights violations (whether under
[[Page S5176]]
the commerce clause or the Fourteenth Amendment to the
Constitution). These included two cases about which I have
questioned prior nominees to the Court: (1) United States v.
Morrison, 529 U.S. 598 (2000), which struck the provision of
the Violence Against Women Act providing a federal civil
remedy for victims of sex-based violence, despite
Congress's well-documented findings of relevant
constitutional violations nationwide; and (2) Board of
Trustees of the University of Alabama v. Garrett, 531 U.S.
356 (2001), which struck the provision of the Americans
With Disabilities Act prohibiting disability-based
discrimination in employment by states, despite Congress's
compilation (in the dissenter's words) of ``a vast
legislative record,'' based on task force hearings
attended by more than 30,000 people, ``documenting
`massive, society-wide discrimination' against persons
with disabilities.'' As I noted in pre-confirmation-
hearing letters to Chief Justice Roberts and Justice
Sotomayor, the Court in Morrison even went out of its way
to disparage Congress's fact-finding competency. Justice
Souter noted in a dissent joined by three other Justices
that the Court had departed from its longstanding practice
of assessing no more than the ``rationality of the
congressional [factual] conclusion[s].''
Chief Justice Roberts's statements during oral argument in
Northwest Austin Municipal District v. Holder, 129 S. Ct.
2504 (2009), may portend even worse things to come. The case
concerned the constitutionality of a key section of the
Voting Rights Act that Congress extended (by a Senate vote of
98 to 0) for another 25 years during my chairmanship of the
Judiciary Committee. Ultimately the Court avoided the
constitutional question in Northwest Austin by deciding the
case on narrow statutory grounds. But during oral argument,
Chief Justice Roberts called into question the validity of
Congress's legislative findings as to the need for the
reauthorization. He said that, in extending the Act,
``Congress was sweeping far more broadly than they need to.''
I intend to ask you, among other questions, whether you
think that the Court has been sufficiently deferential to
Congressional factfinding and whether you would go about
analyzing the sufficiency of the record underlying the
reauthorization of the Voting Rights Act.
Television coverage of the Supreme Court
Although the public has the undisputed right to observe the
Court's proceedings, few Americans have any meaningful
opportunity to do so. Even those who are able to visit the
Court are not likely to see an argument in full. There are
not nearly enough seats. Most will be given just three
minutes to watch before they are shuffled out to make room
for others. In high-profile cases, most visitors will be
denied even a three-minute seating. As Justice Stevens
observed during an interview, ``literally thousands of people
have stood in line for hours in order to attend an oral
argument, only to be denied admission because the courtroom
was filled.'' Those who wish to follow the Court's
proceedings must content themselves with reading the
voluminous transcripts or listening to audiotapes released at
the end of the Court's term. (The Court regularly denies,
without explanation, requests to release the audiotapes of
oral argument on a same-day basis.) It should come as no
surprise that, according to a recent poll taken by C-SPAN,
nearly two-thirds of Americans favor television coverage of
the Supreme Court's proceedings.
In April 2010, the Senate Committee favorably reported both
my resolution (S. Res. 339) expressing the sense of the
Senate that the Court should permit television coverage and
my legislation (S. 446) requiring it to allow coverage. In
the last two Congresses, the Committee favorably reported
nearly identical legislation (S. 1768 in the 109th Congress
and S. 344 in the 110th Congress) that I introduced.
Statements made by the current Justices indicate that a
majority of them--Chief Justice Roberts, Justices Stevens,
Ginsburg, Breyer, Alito, and Sotomayor--are favorably
disposed toward allowing coverage or at least have an open
mind on the matter. Justice Stevens, whom you would replace,
has said that allowing cameras in the Supreme Court is
``worth a try.''
Your past statements suggest that you are a proponent of
coverage. Soon after becoming Solicitor General, you told the
Ninth Circuit Judicial Conference that ``if cameras were in
the courtroom, the American public would see an extraordinary
event. . . . When C-SPAN first came on, they put cameras in
legislative chambers. And it was clear that nobody was there.
I think if you put cameras in the courtroom, people would
say, `wow.' They would see their government working at a
really high level--at a really high level. That is one
argument for doing so.''
I intend to ask you whether, if confirmed, you will support
television coverage and, if you will, whether you will try to
persuade your reluctant colleagues to do likewise.
Constitutionality of regulation of campaign finance
In Citizens United v. Federal Election Commission, 130 S.
Ct. 876 (2010), the Supreme Court held unconstitutional
provisions of federal law prohibiting corporations and unions
from making certain independent campaign expenditures in
support of candidates for federal office, thereby putting
corporations on the same footing as individuals (including
citizens). Some organizations opposed to campaign-finance
reform have heralded Citizens United as the beginning of the
end of campaign finance regulation. The next step, according
to the policy briefs of these organizations, is to challenge
the prohibition on corporate campaign contributions and, in
doing, attempt to eliminate the remaining case-law
distinctions between the speech rights of individual natural
persons and of corporations. Under existing federal law,
corporations may not make campaign contributions. (They may
do so only through tightly regulated PACs.) The Supreme Court
has upheld this restriction against First Amendment
challenge.
Some organizations have even advocated an end to limits on
campaign contributions--as distinct from campaign-related
expenditures--by individuals. In Buckley v. Valeo, 424 U.S. 1
(1976), the Supreme Court upheld limits on contributions by
individuals, even as it struck down a provision of federal
law prohibiting independent expenditures in support of
candidates for office. The Court accepted Congress's finding
that allowing ``large individual financial contributions''
threatens to corrupt the political process and undermine
public confidence in it. Buckley's holding on this point has
been well-settled law for nearly 35 years.
I intend to ask you, among other questions:
(1) Whether, under First Amendment law, there remains
anything left of the distinction between contributions from a
corporation and those from natural persons.
(2) What considerations would you bring to bear in deciding
whether to overrule the portion of Buckley v. Valeo, 424 U.S.
1 (1976), upholding limits on campaign contributions by
individuals?
Sincerely,
Arlen Specter.
____
June 21, 2010.
Hon. Elena Kagan,
Solicitor General of the United States,
Washington, DC.
Dear Solicitor General Kagan: By letters dated May 25,
2010, and June 15, 2010, I identified several subjects I
intend to cover at your nomination hearing. I write to
identify in advance an additional subject that I intend to
cover.
Constitutionality of State Provisions for Publicly Financed
Campaign Matching Funds
In the wake of Davis v. FEC, _ U.S. _, 130 S.Ct. 876
(2008), a district court in Arizona struck down that state's
provision, passed by popular voter referendum, to trigger
matching public funds when a candidate's opponent expended
certain threshold amounts in a primary election. In McComish
v. Brewer, 2010 WL 2292213, *1 (D. Ariz. 2010), the district
court held that Arizona's ``Citizens Clean Elections Act''
was not supported by a compelling state interest, was not
narrowly tailored, and was not the least restrictive
alternative. Hence, the district court held the Act was
``unconstitutional under the First Amendment.'' Id. at 10.
The Court of Appeals for the Ninth Circuit reversed. In
McComish v. Bennett, 605 F.3d 720 (9th Cir. 2010), the
intermediate appellate court wrote, ``Plaintiffs bemoan that
matching funds deny them a competitive advantage in
elections. The essence of this claim is not that they have
been silenced, but that the speech of their opponents has
been enabled.'' The court noted that ``the burden that
Plaintiffs allege is merely a theoretical chilling effect on
donors who might dislike the statutory result of making a
contribution or candidates who may seek a tactical advantage
related to the release or timing of matching funds.''
Describing this burden as ``minimal,'' the court applied
intermediate scrutiny to the Act. Thereafter, the court
considered whether Arizona's interest ``in eradicating the
appearance of quid pro quo corruption to restore the
electorate's confidence in its system of government'' was
compelling. Quoting the Supreme Court's decision in Buckley
v. Valeo, 424 U.S. 1, 96 (1976) the Ninth Circuit recalled
that ``[i]t cannot be gainsaid that public financing as a
means of eliminating the improper influence of large private
contributions furthers a significant governmental interest.''
On June 1, 2010, the Supreme Court denied the application
to vacate the stay ``without prejudice to a renewed
application if the parties represent that they intend to file
a timely petition for writ of certiorari'' to the Court. _
S.Ct. _, 2010 WL 2161754 (Jun 1, 2010). A week later, the
Court reversed course and granted the application to vacate
the stay on the District Court's injunction ``pending filing
and disposition of a petition for writ of certiorari.'' _
S.Ct. _, 2010 WL 2265319 (Jun 8, 2010). The practical effect
of the Supreme Court vacating the appellate court's stay of
the district court's injunction is that Arizona's Citizens
Clean Elections Act is, for present purposes, struck down and
participating candidates are not going to receive matching
funds even if their opponents exceed the triggering
expenditures.
I intend to ask you, among other questions:
(1) Whether you would have voted to vacate the stay pending
disposition of a petition for certiorari, as five justices
appear to have voted in McComish v. Bennett; and
(2) Whether you think that reducing the appearance or
reality of quid pro quo corruption serves a compelling state
interest.
Sincerely,
Arlen Specter.
Mr. SPECTER. Mr. President, a good bit of the substance of the
questions
[[Page S5177]]
which I have been directing toward Solicitor General Kagan involves the
question as to whether she would have voted to grant cert. I believe
that is an appropriate question, whether she would agree that a case
ought to be heard. There is a view that questions ought not to be asked
as to what a nominee would do once a case is pending before the Court.
I think even that doctrine has some limitations. I think cases such as
Brown v. Board of Education, cases such as McCulloch v. Maryland, cases
which are well established in the law of the land, ought to be the
subject for commitment. But I think there is no doubt--in my opinion,
there is no doubt--we should ask her whether she would take a case such
as the Terrorist Surveillance Program, or a case such as the litigation
involving the claims brought by the survivors of victims of 9/11.
The hearings next week on Solicitor General Kagan will give us an
opportunity to move deeply into a great many of these important
subjects. While it is true that in many instances we do not get a great
deal of information from the nominees, I think the hearings are very
important to inform the public as to what goes on with the Court. This
is in line with the efforts which I have made to provide for
legislation which would call for televising the Supreme Court. The
Judiciary Committee has twice passed out of committee, by significant
votes--once 12 to 6 and once 13 to 6--legislation which would call for
the Supreme Court to be televised.
The Congress of the United States has the authority to make
directives on administrative matters--things such as how many Justices
constitute a quorum, when they begin their term, how many members there
are of the Supreme Court. Congress has the authority to mandate what
cases the Supreme Court will hear, and--in the cases which I intend to
ask Solicitor General Kagan, such as the terrorist surveillance
program--whether she would have granted cert.
There are underlying concerns, which I have raised today, of a
certain disrespect which characterizes a good many of the Supreme Court
opinions. For example, the opinion by Chief Justice Rehnquist in
striking down the legislation protecting women against violence,
notwithstanding a very voluminous record--a radical change in the
interpretation of the Commerce Clause--where the Court, through Chief
Justice Rehnquist, said that the Court disagreed with Congress's
``method of reasoning.''
It is a little hard to understand how the method of reasoning is so
much improved when you move across the green from the Judiciary
Committee hearing room past confirmation; or where you have the
language used by Justice Scalia--and I have quoted some of it earlier--
in the case of Tennessee v. Lane, where Justice Scalia had objected to
the congruence and proportionality standard, which he said was a flabby
test and a standing invitation to traditional arbitrariness and policy
decisionmaking.
Then he went on to criticize his colleagues for, as Justice Scalia
said, inappropriate criticism of an equal branch. This is what he had
to say about the proportionality and congruent standard
.Worse still, it casts this court in the role of Congress's
taskmaster. Under it, the courts--and ultimately this Court--
must regularly check Congress's homework to make sure that it
has identified sufficient constitutional violations to make
its remedy congruent and proportional. As a general matter,
we are ill-advised to adopt or adhere to constitutional rules
that bring us into constant conflict with the coequal branch
of government. And when such conflict is unavoidable, we
should not come to do battle with the United States Congress
armed only with a test of congruence and proportionality that
has no demonstrable basis in the text of the Constitution and
cannot objectively be shown to have been met or failed.
So that is fairly strong language in disagreeing with what the Court
has done in establishing the test. And Justice Stevens minced no words
in his criticism of Citizens United in saying that the decision by the
Supreme Court showed a disrespect for Congress. There the Court, in
Citizens United, overruled both McConnell v. Federal Elections
Commission and the Austin case. Overruling Austin was very significant,
Justice Stevens noted, because Congress specifically relied on that
decision in drafting McCain-Feingold. Justice Stevens then said that
pulling out the rug beneath Congress in this matter ``shows great
disrespect for a coequal branch.''
Well, my colleagues, the Congress has an opportunity to assert
itself, to demand the appropriate respect which the Constitution calls
for and has been implemented under the doctrine of separation of
powers. We can find ways to make sure that commitments about respected
congressional fact-finding will be observed, or that the rule of stare
decisis will be respected; that when there are major decisions coming
before the Supreme Court of the United States which involve the power
of Congress vis-a-vis the executive branch, that those decisions will
be made.
So let's sharpen our lines of questioning, colleagues, as we move
forward to the hearings on Solicitor General Kagan a week from today.
I thank the Chair, and I yield the floor.
I had noticed my colleague standing there. I hope I haven't kept him
waiting too long.
Mr. BUNNING. The Senator can speak all he likes.
Mr. SPECTER. I thank the Chair.
The PRESIDING OFFICER. The Senator from Kentucky.
____________________