[Congressional Record Volume 156, Number 111 (Tuesday, July 27, 2010)]
[Senate]
[Pages S6342-S6343]
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 continue the
discussion of the erosion of the very important principle of separation
of powers.
Our Constitution was devised with three branches: article I, the
Congress; article II, the Executive, the President; article III, the
judiciary. A very important concept in the operation of our
constitutional government has been the separation of powers to provide
checks and balances.
During the course of the past two decades, we have seen a substantial
erosion of the power of Congress. Congress's authority has been taken
away in significant measure by the Supreme Court of the United States,
which has, in effect, entered into the legislative process by
disregarding the finding of fact that the Congress has undertaken and
changed the standard for determining constitutionality of legislation.
There had been in effect the rational basis test which had been in
existence for decades. But then in 1995, in a case captioned ``United
States v. Lopez,'' involving the bringing of guns onto school property,
the Supreme Court overturned 60 years of precedent.
In the case of United States v. Morrison, when the Congress had
legislated to protect women against violence, the Supreme Court of the
United States, in a 5-to-4 decision--as was the Lopez case, 5 to 4--
decided that because of the ``method of reasoning'' of the Congress,
the act was unconstitutional, notwithstanding a mountain of evidence,
as noted by Justice Souter in his dissent.
Then in a third case, Kimel v. Florida Board of Regents, an age
discrimination case, the Court again undertook to declare an act of
Congress unconstitutional on a new standard, and the standard is
``proportionate and congruent,'' which is really a virtual
impossibility to understand.
This evening, I propose to discuss two other cases: the case of
Alabama v. Garrett, which interpreted the legislation to protect
Americans with disabilities, and the case of Lane v. Tennessee, also to
protect people with disabilities.
In the case of Alabama v. Garrett, the Court, in a 5-to-4 decision,
decided that the legislation was unconstitutional because it did not
fit this illusive congruent and proportionality test. That was an
employment discrimination case.
In the case of Lane v. Tennessee, it involved a paraplegic who could
not gain access to a courtroom. There was no elevator in the courtroom,
and he could not walk up the steps. There, the same statute, the
Americans with Disabilities Act--a voluminous record, hearings held all
over the United States--by a 5-to-4 decision, the Supreme Court of the
United States decided that application of the Americans with
Disabilities Act was constitutional. The shifting vote was the vote of
Justice Sandra Day O'Connor. But the standard which was applied was
this test of congruence and proportionality. Justice Scalia, in his
dissenting opinion in that case, said the test was a flabby test which,
in effect, enabled the court to engage in legislation. This subject of
the standard to be applied was a significant concern in the recently
concluded hearings for Solicitor General Elena Kagan for the Supreme
Court of the United States. We are faced in these confirmation
hearings, regrettably, with the fact that we can't get answers on
judicial philosophy or judicial ideology.
I am not talking about how the case is going to be decided; that is a
matter for the Court and, as a matter of judicial independence, that is
for the Court to decide. The questions directed to nominees--directed
to Ms. Kagan and directed to others--have not been about how they would
decide a specific case. But in the confirmation hearing with Ms. Kagan,
if we really couldn't get answers from her, it is hard to see any
nominee from whom we could get answers in light of the fact that she
had written extensively on the nomination procedure in a now famous
University of Chicago Law Review where she criticized specifically
Justice Ginsburg and Justice Breyer for stonewalling the Senate and
criticized the Senate for not doing its job in getting information. But
her confirmation proceeding was, in effect, a repeat performance. So we
are really searching for ways to make a determination as to ideology to
have some accountability for what the Justices are doing.
In a later floor statement, I will address the separate issue as to
what, if anything, is possible when the nominees do a 180-degree U-
turn, as Chief Justice Roberts and Justice Alito did when they decided
the case of Citizens United, upsetting 100 years of precedent and a
100,000-page record in allowing corporations to engage in political
advertising.
One of the suggestions which has been made following the proceedings
for confirmation of Justice Scalia in 1986 where he would answer
virtually nothing, Senator DeConcini and I considered a resolution to
establish Senate standards. Then, in the next year, Judge Bork answered
a great many questions as he, in fact, had to because he had such an
extensive paper trail and had such an unusual interpretation of the
Constitution on original intent. So after the Bork hearings, Senator
DeConcini and I decided we didn't need to proceed. Perhaps we were too
precipitous because the following nominations since Judge Bork in 1986
produced the same result: failure to really answer questions.
Another possibility was suggested by later Justice Louis Brandeis in
a famous article he wrote in 1913 talking about sunlight being the best
disinfectant and that publicity was the way to deal with society's
ills. That raises the possibility of finding accountability through
informing the public as to what is going on. The Supreme Court flies
under the radar. It is pretty hard to get an understanding as to what
is going on.
A noted commentator on the Supreme Court, Stuart Taylor, has made a
comment that the way to get accountability is to infuriate the public.
That was his standard. He said until the public is infuriated, the
Supreme Court will be able to continue to take power from the other
branches of government and, most importantly, from my point of view,
institutionally from the Senate of the United States and from the House
of Representatives, in some cases where they leave the Executive with
extensive authority. By refusing to decide a case, as they refused to
decide the conflict between the Foreign Intelligence Surveillance Act,
which is the congressional determination that the only way to get a
warrantless wiretap is through a court order showing the probable cause
and the President's assertion of article II power as Commander in Chief
or the court's refusal to take up the issue of the Foreign Sovereign
Immunities Act
[[Page S6343]]
when lawsuits were brought by survivors of 9/11. Those are subjects I
will discuss at a later time. The hour grows late this evening.
But these are issues which we have to grapple with because the
doctrine of separation of powers is so important and, institutionally,
the Congress ought to be assertive of our authority, when the authority
is taken to the Court, which, in effect, is legislation illustrated by
the two cases, the Garrett case and the Lane case, which I have
discussed--same standard, congruency and proportionality--we can't get
an answer from Ms. Kagan as to what standard she would apply, whether
it would be the rational basis test which had been in effect until the
Boerne case in 1997; not asking her how she would decide a case but
what standard she would apply.
So these are issues I think that have to be very carefully considered
by the Congress.
I have been speaking on the issue of televising the Court for a
couple of decades now, and I tend to continue to acquaint the public as
best we can through C-SPAN, through this medium. But if the public knew
what was happening, I think we might meet the standard of Stuart Taylor
on an infuriated public. I think it will take public concern to provide
some accountability to restore the important balance on separation of
powers.
I thank the Chair, I thank the staff for staying extra, and I yield
the floor. I believe that is the curtain for the day.
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