[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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