[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12371-12372]
[From the U.S. Government Publishing Office, www.gpo.gov]


                           JUDICIAL NOMINEES

  Mr. KERRY. Mr. President, for the past several weeks, the Senate has 
been consumed with President Bush's judicial nominations. We have 
debated the constitutionality of the nuclear option, and we have 
debated the merits of the judicial nominees themselves. In the past 2 
weeks, the Senate has confirmed 6 nominees bringing the total of 
confirmed judges to 214 out of 218.
  I voted for two of these nominees: Richard A. Griffin and David W. 
McKeague, both of whom were nominated to the Court of Appeals for the 
Sixth Circuit. These two individuals were highly rated by the American 
Bar Association, and, although I disagree with their politics, I 
believe they will be fair and impartial jurists.
  I voted against the other four nominees, none of whom I believe 
deserved lifetime appointments to the Federal bench. Each one has 
demonstrated an unwillingness to follow the law when it conflicts with 
his or her extreme conservative political ideology, and each one 
embraces a judicial philosophy which would severely curtail 
constitutionally protected civil rights and civil liberties. Confirming 
these nominees was a mistake, and their appointments diminish the 
strength and integrity of the Federal judiciary.
  Take, for example, Priscilla Owen. While on the Texas Supreme Court, 
Priscilla Owen repeatedly attempted to rewrite the law from the bench 
as her dissent in an abortion case concerning parental consent and 
judicial bypass clearly demonstrates. Justice Owen did not like the 
fact that the Texas law permitted abortions without parental consent in 
certain circumstances. As it turns out, she was not the only one. The 
majority did not like the law either, but, unlike Justice Owen, they 
honored their sworn duty to uphold it. In their words, they:

     recognize that judges' personal views may inspire 
     inflammatory and irresponsible rhetoric. Nevertheless, the 
     [abortion] issue's highly-charged nature does not excuse 
     judges who impose their own personal convictions into what 
     must be a strictly legal inquiry. We might personally prefer, 
     as citizens and parents, that a minor honor her parents' 
     right to be involved in such a profound decision. But the 
     Legislature has said that Doe may consent to an abortion 
     without notifying her parents if she demonstrates that she is 
     mature and sufficiently well informed. As judges, we cannot 
     ignore the statute or the record before us. Whatever our 
     personal feelings may be, we must respect the rule of law.

  Then Justice--and now Attorney General--Alberto Gonzales was much 
more direct in his criticism of Justice Owen's decision in this matter. 
He chastised Owen for rewriting the Parental Notification Act in a way 
that created nonstatutory hurdles to obtaining a judicial by-pass. He 
called it ``an unconscionable act of judicial activism'' and noted 
that:

     [a]s a judge, I hold the rights of parents to protect and 
     guide the education, safety, health, and development of their 
     children as one of the most important rights in our society. 
     But I cannot rewrite the statute to make parental rights 
     absolute, or virtually absolute, particularly when, as here, 
     the Legislature has elected not to do so.

  Entrusting Priscilla Owen with a lifetime appointment to the Court of 
Appeals for the Fifth Circuit did not strengthen the Federal judiciary, 
Mr. President, it weakened it.
  Janice Rogers Brown has not only shown her willingness to re-write 
our Federal laws but has also indicated a desire to re-interpret the 
U.S. Constitution, even if doing so would reverse 70-year-old 
precedent. Justice Brown has publicly supported a return to the era of 
Lochner v. New York, one of the most discredited Supreme Court cases in 
history. Without going into the details, it is fair to say that even 
staunch conservatives view Lochner as a clear case of the worst kind of 
judicial activism. Justice Scalia has criticized it, stating that 
Lochner was discredited because it

     sought to impose a particular economic philosophy on the 
     Constitution.

  Justice Brown thinks Justice Scalia is wrong. She explained, I quote, 
that it

     dawned on me that the problem may not be judicial activism. 
     The problem may be the world view--amounting to altered 
     political and social consciousness--out of which judges now 
     fashion their judicial decisions.

  Justice Brown brought that same kind of activism to bear on her lone 
dissent in the 2001 case of San Remo Hotel v. California, when she 
interpreted the Constitution--in this case the Takings Clause--to 
advance her personal economic theories.
  Placing Janice Rogers Brown on the Court of Appeals for the District 
of Columbia Circuit did not strengthen our Federal judiciary, Mr. 
President, it irreversibly damaged it.
  William H. Pryor Jr. has been a constant and outspoken advocate for 
scaling back constitutionally guaranteed rights. Pryor opposes abortion 
even in cases of rape or incest, and has called Roe v. Wade a creation

     out of thin air of a constitutional right to murder an unborn 
     child.

  As the attorney general of Alabama, Pryor filed an amicus brief with 
the Supreme Court equating private consensual sex between same-sex 
couples with activities like prostitution, adultery, necrophilia, 
bestiality, possession of child pornography, and even incest and 
pedophilia.
  The Supreme Court rejected Pryor's arguments when it found the Texas 
law criminalizing private, consensual sexual intimacy between same-sex 
adults to be unconstitutional. The Supreme Court also rejected Pryor's 
argument, filed in another amicus brief, that the eight amendment 
permits the execution of mentally retarded offenders.

[[Page 12372]]

  William Pryor's consistent pursuit of extreme and incorrect legal 
views should have been a red flag for my colleagues. It should have 
demonstrated how dangerous placing him on the Federal bench with 
lifetime tenure would be. Unfortunately, Mr. President, it did not. As 
a result, our Federal judiciary will have less ability to protect the 
constitutional rights we hold so dear.
  Thomas B. Griffith presents a similar threat to our constitutional 
rights, particularly to the rights of women. As a member of the 
President's Commission on Opportunity and Athletics, Mr. Griffith made 
a radical proposal to eliminate the ``proportionality test'' in title 
IX cases. The proportionality test has long been used for determining 
compliance with title IX and requires that the school in question 
demonstrate that the athletic opportunities for males and females are 
in substantial proportion to each gender's representation in the 
student body of the school. As support for his proposal, Mr. Griffith 
stated that he was unilaterally opposed to the use of numeric formulas 
to evaluate title IX compliance. He added that, in his view, the 
proportionality test--and the use of numeric formulas--violates the 
equal protection clause, despite the fact that eight Circuit Courts of 
Appeals have rejected that very position.
  Mr. Griffith's statement demonstrates a lack of respect for previous 
court rulings and raises questions about whether, as a judge, he would 
follow established precedent. In fact, the ABA has rated him partially 
not qualified. With legal views so clearly out of the mainstream, Mr. 
Griffith's confirmation seriously undermines the strength of the 
Federal judiciary. His confirmation is particularly problematic given 
the fact that his voice will be added to that of Janice Rogers Brown, 
both of whom have been confirmed to the D.C. Circuit.
  Thus, after months of debate, we are left with a Federal judiciary 
less likely to protect individual rights and more likely to undermine 
the legal principles which Americans hold so dear. And, because we have 
spent so much time debating these unqualified judges, we, as U.S. 
Senators, have not been able to address the very real problems facing 
the American people. Problems like ensuring people have adequate health 
care and top-notch educations. Problems like securing our energy 
independence and providing for our Nation's military families.
  Currently, 44 million Americans do not have health care, and as a 
result, many middle-class Americans are one doctor's bill away from 
bankruptcy. This is particularly troublesome given that eleven million 
of those uninsured are children--sons and daughters of working parents.
  Our education system is terribly underfunded. Teachers are being 
asked to provide more with less, and, as a result, students of every 
age from head start to higher education--are getting sub-par 
educations.
  Our Nation is now more dependent on foreign oil than ever before. We 
rely heavily on Middle East countries that do not share our values--a 
reliance that makes us more vulnerable every day--yet still, Americans 
are suffering at the pump, paying $2.12 a gallon.
  Our military families, the people who are the front line in the war 
on terror and allow us to live life as we know, struggle unnecessarily 
to pay the bills and deal with lost benefits when loved ones are called 
to duty.
  Our country has amassed record deficits, mounting debts that cede a 
dangerous amount of control over America's economic future to central 
bankers in Asia and oil cartels in the Middle East.
  These are the issues that we should be debating. These are the 
problems that plague Americans daily. The judicial confirmation process 
should be quick and easy, allowing us the time we need to work on the 
real problems facing this great Nation. All we need is for the 
President to take seriously the Senate's role of providing advice and 
consent. We need the President to nominate more individuals like 
Richard A. Griffin and David W. McKeague, principled jurists who are 
committed to following the law and upholding our constitutional rights, 
and less individuals like Priscilla Owen, Janice Rogers Brown, William 
Pryor, and Thomas Griffith, conservative ideologues who are not afraid 
to rewrite our laws to further their political agenda. I can only hope 
that he will do so in the future, sparing the Senate from endless hours 
of debate on unqualified, dangerous judges.
  Thank you, Mr. President.

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