[Congressional Record (Bound Edition), Volume 157 (2011), Part 8]
[Senate]
[Pages 11292-11295]
[From the U.S. Government Publishing Office, www.gpo.gov]




                               JOHN GLENN

  Mr. REID. Mr. President, I did not know it was John Glenn's birthday. 
I am so happy I was on the floor when my dear friend from Ohio talked 
about John Glenn. John Glenn--when I came to the Senate, one of the 
first Tuesday caucuses we had I watched John Glenn stand and say: I am 
going to go out on the aircraft career USS Kennedy on Saturday. Would 
anyone like to go?
  I was a new Senator. I thought everyone would raise their hand and 
march off with him. I was the only one who raised my hand. So I did. I 
went out with him. It was a wonderful experience. The seas were a 
little bit rough and we landed and that cable snagged that airplane 
going in. We were there for many hours and the seas got rougher and 
rougher.
  The pilots coming in, this was the first time they had landed on an 
aircraft carrier. We went out on the deck of the ship, and the planes 
would come in. Oh, man. The crews there, if they did not think the 
plane could land--it was going too far off the end: ``Dirty. Dirty.''
  That meant get the plane up off the carrier, go up and come back and 
try it again. They did that for quite some time. Then, John Glenn said: 
I think I should go up in one of those airplanes. So John Glenn went up 
and flew an airplane. I do not know how old John Glenn was. It was 25 
years ago, so he was a young man--he was 65--and here he comes in, 
landing on the aircraft carrier, John Glenn.
  Totally changing the subject. A group from Nevada won the Double 
Dutch skip-roping championship. They came to my office over in the Hart 
Building to show me how good they were. Of course, it takes a little 
space to do it. So in one of the outside hallways there in the Hart 
Building they do this Double Dutch jumping.
  They asked me to try it. I was so embarrassed. I could not get one 
step. I

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did not realize, but from his office, John Glenn had been watching 
these kids jumping rope. He comes out, the famous John Glenn, and says: 
Would you mind if I tried?
  I do not know. I assume he was 70 years old at the time. He was 
perfect, did not miss a step. I mean, that is hard to do. Jumping rope 
is hard, but when you have two people flipping two different ropes, it 
is hard. He did that. What a physical specimen he was at 70 years old. 
Think what he must have been when he was 20 years old, a man who in 
World War II was an ace, meaning he shot down so many airplanes. He did 
the same thing in Korea. Here is a man who was the first to orbit in 
space. You can go see his spacecraft down in the Air and Space Museum. 
He says: Go look at it. He said: What they said about that is I wore 
it. It was so small, but he went up there.
  The stories he told, I just so loved John Glenn. He said: They did 
not know what it would be like to go up in space. No one had ever done 
this. He told me about all the precautions they did the first time he 
went up in space. They did not know if the air sickness would come and 
they could not handle the flight. He was trained. He had a big 
hypodermic syringe that would go through his space clothes, shoot him 
in the thigh so he would not get too sick up there.
  He learned--I do not know how many--``I come in friendship''--in many 
different languages because they did not know for sure, if the 
spacecraft would go down, who would be there. But they had a general 
idea where it would go. So he learned to say: ``I come in friendship'' 
in many different languages. Then, of course, he went up in space once 
again.
  He was such a wonderful human being. I had such admiration for him. 
To think I was able to serve in the Senate with John Glenn says it all, 
and Sherrod Brown, Senator Brown, was absolutely right. This 
relationship, this love affair, that John Glenn and Annie had and have, 
their 68 years of marriage is remarkable.
  As the books have shown and the movies show, Annie had a very bad 
speech impediment. She stammered. She stuttered. She stuttered until 
she was, I do not know how old, but in her fifties, and she stammered 
very much. John Glenn, when they were courting each other, would have 
to do her phone calls for her because she could not talk on the phone 
very well.
  What a wonderful human being, John Glenn. I know there are other 
people wanting to speak. But I have to say a couple of things. He led a 
congressional delegation when I was a relatively new Senator. We went 
behind the Iron Curtain. I can remember going from Austria into 
Czechoslovakia, and the Communists had stopped the train we were on. 
They had dogs and they had these soldiers looking under the train and 
they went and looked at who we were.
  But when things calmed down, one of the soldiers asked John Glenn for 
his autograph. He is a world-famous man and is a man of such humility. 
I want him to know, and everyone within the sound of my voice, he is 
one of the finest human beings I have ever met. He is a historical 
figure now and for all time in the United States.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I know Senator Grassley is waiting and I 
am going to be brief. I thank him for his indulgence.
  But when Senator Sherrod Brown of Ohio came to the floor to speak of 
John Glenn, I could not help but stay, and I am glad I did. First, for 
those who were listening, the good news is we are celebrating his 
birthday. He is still alive and well, with Annie, and we are sure happy 
that is the case.
  When I was just getting started in politics, 1982, I was running for 
Congress in Springfield, IL, and Senator John Glenn called and said: I 
am going to come and campaign for you. I cannot tell you how excited I 
was to meet him face to face in my hometown. He is truly an American 
hero. For all his service to the United States, a naval pilot, Marine 
pilot in World War II, in the Korean war, our first man into space, an 
astronaut who reprised his performance at the age of 77. He went back 
into space. It tells you what kind of person he is, his courage and his 
strength, his physical strength that he could do that.
  I had the good fortune of being on the floor of the Senate for my 
orientation in 1996, and your predecessor, Mr. President, Senator 
Robert Byrd, would sit in that chair and tell all the new Members and 
their spouses the history of the Senate. I sat right over here, and 
Loretta sat next to me. At one point, Senator Byrd said: Open that desk 
drawer in front of you. You are going to see a great Senate tradition. 
Remember how the teachers told you, don't write on the desks. Well, the 
Senators never got the message.
  Inside virtually every desk on this floor is the name of the Senator 
who sat in the desk, scratched in the wood by the Senator at the bottom 
of the drawer. He said, pull out the drawer on the desk and see whose 
name is in there. Sure enough, it was John Glenn's. It was his desk I 
was sitting at. Next to it was Paul Douglas, the man I worked for as a 
college intern, who inspired me to get started in public life. So I 
have that desk today. I am honored to have it and to have added my name 
to the desk drawer of these two great men.
  I didn't realize at the time that not only would I be able to have 
this desk, but I would actually serve with John Glenn. I think there 
have been fewer than 1,300 men and women who have had the honor to be 
in the Senate. Many have vanished into history and will never be 
remembered for anything significant. That is not true of John Glenn. 
What he has done in his public life is set an example to everybody who 
aspires to this job. He literally risked his life for this country over 
and over. He is a humble, quiet, friendly person, and he is dedicated 
to Annie. The two of them have a relationship, as President Obama said, 
that is extraordinary in American life.
  The fact that I got to know him, got to serve with him, and he helped 
launch me on this political journey I am on today is something I will 
never, ever forget. I wish John Glenn, our former colleague, a happy 
birthday, and thank him again and again for all the service he has 
given to this great Nation. He has made America a better place. I am 
honored to have been one of his colleagues.
  The PRESIDING OFFICER. The Senator from Iowa.


                           Judicial Activism

  Mr. GRASSLEY. Mr. President, the Supreme Court earlier this month 
issued a very important decision which bothered me--a decision that I 
think shows that dissenters in this decision are judicial activists. It 
is important not only on the merits of the case but because it shows 
how this country is only one vote away from unprecedented judicial 
activism.
  The Obama administration is encouraging this judicial activism. The 
Obama administration is taking legal positions that threaten the role 
of Congress as a coequal branch of our government. Those positions 
challenge the separation of power that is designed to protect the 
freedom of Americans, and even the right of people to govern 
themselves, which is the basis of representative government and the 
purpose of the Congress.
  The United States happens to be a party to the Vienna Convention on 
Consular Relations. This treaty gives rights to the citizens of 
countries who are parties to that treaty to have access to their 
country's consular officials if they are arrested abroad. There are 
some foreign nationals in this country who were sentenced to death 
without those rights being respected. All of these death sentences 
appear to be valid under the American Constitution.
  The story is complicated, but in 2008 the Supreme Court ruled that 
failure to comply with the treaty was not an obstacle to the execution 
of a foreign national who had been sentenced to death. This was the 
case even if the President ordered a State to allow the criminal to 
challenge his sentence in light of the treaty, and even if the criminal 
obtained a judgment from the International Court of Justice that his 
conviction violated international law.

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The Court said that Congress could pass legislation to make the treaty 
apply to people on death row who had not received consular access. We 
in the Congress have never passed such a law.
  Now to the Supreme Court case that concerns me in light of this 
background on the consular relations treaty. In 1994, Humberto Leal 
Garcia, a Mexican national, kidnapped a 16-year-old girl, raped her, 
and bludgeoned her to death. He did not ask for access to the Mexican 
consul, and he did not receive access. He did not challenge his failure 
to receive consular access during his trial. Only after he brought 
State habeas corpus litigation did he raise this claim; and even then, 
he did not raise consular notification as an issue in his first habeas 
corpus petition.
  Mr. Leal did obtain a ruling from the International Court of Justice 
that his conviction and sentence were obtained in violation of 
international law. The International Court of Justice ordered that he 
was entitled under national law to receive another review of his 
conviction and sentence, regardless of whether habeas law allowed him 
to raise such an issue. But that ruling is obviously not binding on 
American courts, as no country in the world, including the country of 
Mexico, enforces International Court of Justice rulings as part of its 
domestic law.
  As his execution date approached, Mr. Leal sought a stay in the 
Supreme Court. Since Mr. Leal received a fair trial under American law, 
and there was no question concerning his guilt, his request should have 
been rejected, and rejected unanimously. But that is not what happened. 
He was executed, but the Supreme Court's ruling was shockingly close--5 
to 4.
  The Department of Justice, through the Solicitor General, Donald 
Verrilli, asked the Supreme Court to grant the stay. Its brief was 
truly astonishing. It did not argue that there was any doubt Mr. Leal 
was guilty. It did not say Mr. Leal had been harmed in any way by the 
Vienna Convention violation. It cited no case that provided an example 
where a stay had been issued in similar circumstances. It raised no 
arguments for the stay that were based on American law, because 
American law did not support a stay.
  Instead, the Department of Justice relied on international law and 
made policy arguments. It argued that Mr. Leal's execution would create 
negative effects on America's international relations. It argued that 
his execution would violate our international legal obligations, and it 
argued that the mere introduction of legislation--understand this, just 
introducing a bill and at the same time having the support of the Obama 
administration-- should allow the Court to issue a stay to preserve its 
jurisdiction if time were given to allow the bill to be enacted. This 
is the position that worries me and threatens the role of Congress as a 
coequal branch of government.
  Everyone knows bills are not laws. Bills are what we introduce. If we 
pass bills, they become law. The Founding Fathers made it very 
difficult to enact laws. There are two Houses of Congress, and each has 
to pass the same version of the bill and the President has to sign that 
bill or a supermajority of both Houses must override a veto.
  This was done to protect the rights of the American people. Only if a 
bill passes through a specified process can a bill become a law. A 
court following the rule of law can only enforce what actually becomes 
a law. There may be times when an agency might pay attention to a bill 
that is introduced, but that is an agency. In the case of courts, a 
court should only apply what has actually become law--in other words, a 
bill passing both Houses of Congress, signed by the President--not pay 
attention to a bill that has just been introduced.
  The Solicitor General's brief relied on a bill, not a law. The name 
of the bill is the Consular Notification Compliance Act. That bill 
would retroactively allow prisoners on death row whose Vienna 
Convention rights were violated yet another bite at the apple. If the 
bill passed, they would be able to delay their death sentences--lawful 
sentences under American law--with another round of judicial review for 
compliance with what? International law. Although the bill is strongly 
supported by the Obama administration, it has not passed, so it is not 
law, it is a bill. It is going to have a hearing soon, but it is not 
scheduled to be placed on the committee agenda for markup. It is clear 
there is no chance this Congress would pass a law that retroactively 
allowed foreign nationals who face lawful death penalties another round 
of judicial review based upon the Vienna Convention.
  Congress simply will not pass a bill that gives Federal judges 
another opportunity to display their dislikes of the death penalty by 
delaying cases for no good reason. Only Congress can legislate. But the 
Obama administration argued in the Court that the Supreme Court should 
grant a stay, even though Congress has not legislated, simply because 
the executive branch strongly supported the bill, which theoretically--
but only theoretically--could pass at some future time.
  Do you know what disturbs me? Four Justices agreed with this 
outlandish position. There is absolutely no precedent for the position. 
These dissenters accepted an Obama position that was made out of whole 
cloth. When courts rule based on law, we have the rule of law. When 
they rule based upon policy preferences, we have judicial activism, not 
the rule of law.
  The Obama administration asked for a stay based upon policy 
preferences, based on international law, and based on that 
administration's view that a bill it supports takes overwhelming 
precedence over a considered decision of Congress not to pass that 
legislation. Four Justices--just one short of a majority--were willing 
to disregard American law in favor of international law, and also in 
favor of policy implications, and also based upon a bill being 
introduced in Congress. This is not only inconsistent with the rule of 
law, it is a threat to American democracy. How extreme.
  The American people, through their elected representatives, have 
enacted the death penalty and established limits on habeas corpus 
petitions that impede executions. The people's representatives--those 
of us in the Congress--also declined to enact a bill to implement the 
Vienna Convention. Notwithstanding that decision of the people's 
representatives, this administration and four Justices would have used 
an unpassed bill to delay a death sentence. How extreme. They would 
have had the courts not allow the preferences of the American people as 
expressed through their elected representatives but, instead, their own 
policy preferences. How extreme. But under our system of government, 
the results of the democratic process are entitled to prevail, unless 
the Constitution--and only the Constitution--clearly provides 
otherwise.
  The position of the Obama administration and the four dissenting 
Justices also is harmful to American democracy in yet another way. If 
the American people dislike what Congress is doing, it is very simple. 
In the next election, they can elect new Representatives and Senators. 
They can ask that Federal judicial nominees be stopped or that laws be 
passed that overturn judicial decisions made under Federal law. But 
what are the American people to do if judges make decisions based on 
the views of foreign governments and international tribunals that are 
contrary to our very own law? What if judicial rulings are designed to 
enforce decisions of the International Court of Justice, rulings that 
are not binding as Federal law? Americans cannot influence the views of 
foreign governments or the rulings of international tribunals.
  Had the Obama administration and the four dissenting Justices 
prevailed, the American people would have lost a part of the right to 
govern themselves. That right would have been replaced with ``obedience 
without recourse'' to foreign powers over whom our people exercise no 
voice. That is not the system the Founding Fathers bequeathed us.
  The question of whether courts should apply American law or foreign 
law is of great concern to me and to other members of the Judiciary 
Committee, and maybe to a lot of Senators

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who aren't on that committee. Those of us on the committee have thought 
about this specific question long before this recent Leal case that has 
come, I guess within the last 3 weeks. And I have asked judicial and 
administration nominees about these very issues at their confirmation 
hearings.
  For instance, just a few months ago, I posed a question to the 
nominee for Solicitor General, Mr. Verrilli, about an amicus brief he 
had filed on behalf of foreign nationals who had been sentenced to 
death. In that brief, Mr. Verrilli argued not that the prisoner's 
constitutional rights had been violated, but that ``[i]t is in the 
interests of the United States and the world community that the legal 
standards of the United States should reflect and be informed by 
international human rights.''
  I asked Mr. Verrilli, were he confirmed, whether there were any 
circumstances in which he would argue before the Supreme Court in a 
death penalty case that the Court be ``informed by international 
rights?'' He responded:

       I will adhere to the view that foreign law, including 
     international human rights law, has no authoritative force in 
     interpreting the Constitution and laws of the United States, 
     except in those rare instances where federal statutes 
     incorporate or make international and/or foreign court 
     decisions binding legal authority.

  Responding to my question on the difference between international 
human rights and our own constitutional rights, Mr. Verrilli stated:

       International human rights are set forth in international 
     treaties, conventions and customary international law. They 
     are not binding and enforceable in the United States unless 
     Congress has made them so.

  The Leal case does not involve a Federal statute of the type Mr. 
Verrilli cited, nor does it concern any international standards binding 
and enforceable in the United States because Congress made them so. I 
believe Mr. Verrilli's brief as Solicitor General is very inconsistent 
with what he related during his confirmation hearing.
  The brief relied on international human rights, and its only 
reference to American law was this bill that I have referred to--not a 
law, a bill--which, under our constitutional system, is as different 
from a law as night is from day.
  I would also note that Mr. Verrilli stated during his confirmation 
hearing:

       If the Attorney General [or the President] directed that I 
     take a position . . . one that I believe to be an 
     indefensible view of the law, I would not lend my name or 
     that of the Office of Solicitor General to carrying out the 
     order, and would certainly resign rather than carry out the 
     order.

  Mr. Verrilli obviously does not believe that reliance solely on 
international law and a bill is an indefensible view of the law. I 
disagree with him on that point.
  Similarly, during her confirmation hearing, Justice Sotomayor was 
asked about the application of foreign or American law. She was one of 
these dissenters. She stated:

       I do not believe foreign law should be used to determine 
     the result under constitutional law or American law, except 
     where American law directs.

  In the Leal case, foreign law should not have been used to resolve 
the case because American law did not direct that foreign law apply.
  When Justice Kagan appeared for her confirmation hearing, she stated 
that in deciding cases, ``you're looking at law all the way down, not 
your political preferences, not your personal preferences.''
  However, the law in the Leal case is clear. Executive branch policy 
arguments and unenacted bills are not law.
  I am not saying the Solicitor General or these Justices who dissented 
lied at their confirmation hearings or made a mockery of the 
confirmation process, but Judiciary Committee members foresaw cases 
such as Leal and asked the nominees to address the role of foreign law 
in constitutional cases. I believe, although they do not, what these 
individuals wrote in the Leal case is inconsistent with what they said 
at the time of their confirmation hearings.
  Finally, one of these issues could arise again in a different legal 
context. Like the death penalty cases, there is ongoing litigation 
challenging the constitutionality of the Defense of Marriage Act. Like 
the death penalty cases, the Defense of Marriage Act is the subject of 
a bill. The particular bill--called the Respect for Marriage Act--
notwithstanding its Orwellian name, would repeal the Defense of 
Marriage Act.
  The Department of Justice has already decided not only to defend the 
Defense of Marriage Act but now argues the Defense of Marriage Act is 
unconstitutional. The Department, in light of its Leal brief, may be 
considering making the implausible argument the courts should strike 
down the Defense of Marriage Act simply because a bill has been 
introduced to repeal it--the same argument used in the Leal case before 
the Supreme Court.
  You might well argue the introduction of a bill that is strongly 
supported by the administration is enough to lead courts to believe the 
Congress has already repealed the law anyway, so why not have the Court 
simply declare the law unconstitutional. The Department should not make 
such an argument, and I can tell the courts that, like the bill to make 
the Vienna Convention apply retroactively to convicted criminal 
defendants who face the death penalty, this Congress will not--and I 
repeat, will not--pass the Respect for Marriage Act and courts should 
not consider its introduction in resolving DOMA's constitutionality.
  Mr. President, obviously, I am disappointed the Obama administration 
has advanced policy arguments rather than legal arguments in the 
Supreme Court. How ridiculous it is to try to convince the Supreme 
Court that just because a bill is introduced they ought to make a 
decision based upon that bill being introduced.
  In the absence of arguments based on American law, it should not have 
asked the Court to rule based on policy. Rather, it should have either 
argued based on American law--even if American law did not conform to 
its view of desirable policy--or it should have declined to participate 
in the case.
  I am also disappointed that four Supreme Court Justices voted to 
advance their views of policy rather than law, which is the essence of 
judicial activism. We were--or you could say we are--only one vote away 
from a Supreme Court majority that would have applied policy 
preferences in favor of international law rather than American 
constitutional law. We were only one vote away from a Supreme Court 
majority that would have usurped the separation of powers by 
considering a bill to be the same as a law that Congress passed. And we 
were only one vote away from a Supreme Court majority that would have 
applied the ruling of an international tribunal over which Americans 
have no say rather than a body--as in this Congress of the United 
States--that is representative of and answers only to the American 
people.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Blumenthal). Without objection, it is so 
ordered.

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