[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Senate]
[Pages 6257-6258]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     ISSUES CONFRONTING THE SENATE

  Mr. ALLEN. Mr. President, I rise to share with my colleagues my 
observations and urgings on two issues: One, following on the eloquent 
remarks of the Senator from Georgia, Saxby Chambliss, on the importance 
of judges and actions in the Senate; and the second has to do with our 
National Guard and Reserves who are being called up for duty and what 
the Federal Government can do to be helpful to them.


                                 Judges

  First, on judges, I look at four pillars as being essential for a 
free and just society: freedom of religion, freedom of expression, 
private ownership of property, and fourth, the rule of law. The rule of 
law is where judges come in, where you have fair adjudication of 
disputes, as well as the protection of our God-given rights.
  It is absolutely essential we have judges on the bench at the Federal 
level, and at all levels, who understand their role is to adjudicate 
disputes, to apply the facts and evidence of the case to the laws, laws 
made by elected Representatives. We are a representative democracy. 
That means the judges ought to apply the law, not invent the law, not 
serve as a superlegislature, not to use their own opinions as to what 
the law should be but rather apply it. That is absolutely essential for 
the rule of law, for the credibility and stability one would want to be 
able to rely on in our representative democracy for investments and, as 
we advance freedom, to try to have the people of other countries around 
the world put into place these four pillars of a free and just society.
  What we have seen is a break of precedent in the Senate. For 200 
years judicial nominees from the President, when they were put forward, 
were examined by the Judiciary Committee very closely, as they should 
be, as to their temperament, philosophy, and scholarship. If they 
received a favorable recommendation from the committee, they would come 
to the floor and Senators would vote for them or against them. In the 
last 2 or 3 years, what we have seen is unprecedented obstruction, a 
requirement, in effect, of a 60-vote margin for judges, particularly at 
the appellate level. The most egregious in recent years, in my view, 
was Miguel Estrada. He is an outstanding individual, completely 
qualified--great scholarship, great experience--a modern-day Horatio 
Alger story, having come to this country from Central America, applying 
himself, doing well. Indeed, the American Bar Association unanimously 
gave him their highest recommendation and endorsement.
  That went on for a year. Then it went on for another year. It went on 
for over 2 years, and he finally had to withdraw, notwithstanding the 
fact that a vast majority of Senators were actually for Miguel Estrada.
  It is not unique to him. It has happened to roughly 10 or so 
appellate judges, including those nominated for the Ninth Circuit, 
which is the circuit where you have adventurous, activist judges who 
ignore the will of the people. For example, the recitation of the 
Pledge of Allegiance in schools, which they struck down because they 
are concerned about the words ``under God.'' That is the sort of 
activist judiciary that is ignoring the will of the people, who are the 
owners of this Government.
  People say: What do we need to do, and they up come with this term, 
``nuclear option.'' It is a constitutional option. It shows how out of 
touch people are in calling this a nuclear option, when all it is is 
the question of whether it is a majority vote to give advice and 
consent or to dissent on a particular judicial nomination. It is my 
view, in the event the minority party continues with the approach of 
obstructing the opportunity of a nominee to have fair consideration, 
then this constitutional option must be utilized. We should not be 
timid. We should not cower. I believe the obstructionist approaches are 
preventing me from exercising my duty and responsibility to the people 
of the Commonwealth of Virginia to advise and consent on these judicial 
nominations. I hope my colleagues will not continue this obstructionist 
approach. In the event they do, then we have to use the constitutional 
option. I do not think it is too much to ask Senators to get off their 
haunches and show the backbone or spine to vote yes or no, but vote, 
and then explain to their constituents why they voted the way they did 
on any particular man or woman who has been nominated to a particular 
judicial position.
  I am hopeful we do not have to use it, but if we do, go for it. Do 
not cower. Do not be timid. The people, as my colleague from Georgia 
said, all across this country, whether they are down in Cajun country 
in Louisiana, whether they are in Florida, whether they are in the 
Black Hills of South Dakota, or whether they are in the Shenandoah 
Valley of Virginia, expect action on judges. As much as people care 
about less taxation and energy security for this country and wanting us 
to be leaders in innovation, they really expect the Senate to act on 
judges. It is a values issue. It is a good government issue. It is a 
responsibility-in-governing issue that needs to be addressed.


                           Amendment No. 356

  I would like to turn my attention to the amendment pending on the 
supplemental, one submitted by Senators Durbin, Mikulski, and me. This

[[Page 6258]]

amendment will eliminate the pay gap that many of our Federal employees 
who serve in either the National Guard or the Reserves suffer when they 
are called up for active duty. We need to do everything we can within 
reason to recruit and retain those who serve in the Guard and Reserves. 
We, as a Federal Government, and I, as a Senator, encourage private 
businesses to make up that pay gap.
  Many times, when people get called up, their Active-Duty pay is less 
than they would be getting in the primary job. That is what the pay gap 
is. It is one of the key factors, top five factors in people not re-
upping. It does have an impact on their families. On average, the pay-
gap loss is about $368 a month. They still have housing payments, they 
still have food. Many of those who serve in the Guard and Reserve have 
families, and those expenses go on.
  Out of the 1.2 million members of the National Guard and Reserves, 
120,000 are also employees of the Federal Government. As of January 
2005, 43,000 Federal employees have been activated since September 11, 
2001, and are serving courageously and beneficially for our freedom and 
our security. Right now there are more than 17,000 on active duty.
  There are those firms in the private sector who have made up this pay 
gap. There are over 900 companies, such as IBM, Sears, General Motors, 
UPS, Ford, that make up the pay differential. In fact, 23 States have 
enacted similar legislation to make up the pay difference. I am proud 
to say one of them is the Commonwealth of Virginia.
  The Senate has supported this in the past. I think it makes a great 
deal of sense that we support not only the members of the Guard and 
Reserves who are called up to active duty who serve in the Federal 
Government, but also support their families. I think this amendment, 
which I am sponsoring along with Senators Durbin and Mikulski, makes a 
great deal of sense. It is one I hope, when we get to voting on it 
sometime today, will enjoy the support of all the Members of the 
Senate. It is very important we do what we can, within reason, to help 
in the recruitment and retention of those who are serving our country, 
who are disrupting their lives and, in fact, are being called up more 
frequently and for longer duration than ever before.
  I hope we will see that agreed to on the supplemental some time 
today. I also hope we will get back to the 200-year history of the 
Senate on consideration, treatment, and actual voting on outstanding 
judicial nominees who have come out of the Judiciary Committee with a 
favorable recommendation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, am I correct that we are in 
morning business and it is appropriate to address the Senate in morning 
business?
  The PRESIDING OFFICER. The Senate is in a period of morning business. 
The minority side controls 30 minutes. The Senator is recognized.

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