John Ashcroft

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I believe I have the floor.

Mr. ASHCROFT. Mr. President, I believe I have the floor.

Mr. ASHCROFT. Objection.

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ASHCROFT. Mr. President, I had hoped to offer to the Senator from Pennsylvania an opportunity to make brief remarks, and that is the reason I placed the quorum call, for an opportunity to make that offer. The nomination of Frederica Massiah-Jackson is a nomination which I think should call us each to a very serious consideration of our responsibilities here in the U.S. Senate. Judges who are appointed for life, who really do not answer to the voters, do not answer to the administration or the executive branch, have a very high degree of power in the culture and we should be very careful about the individuals that we endow with the authority of becoming Federal judges. The National Association of Police Organizations understands that and the National Association of Police Organizations announced its opposition on January 22, to this nominee. Further, there is opposition from the local law enforcement community in Philadelphia, opposition from individuals that one would not expect to ordinarily oppose a nominee except in extraordinary situations: Lynne Abraham, who is the district attorney in the Philadelphia area--a Democrat, someone you would expect to be aligned with the President and his nominations--at great political cost, with substantial display of putting the benefit of the community in Philadelphia above party loyalty, came out against the nomination of Frederica Massiah-Jackson in a letter to Senator Specter, at least that is my information, on January 8. She wrote: My position on this nominee goes well beyond mere differences of opinion, or judicial philosophy. Instead, this nominee's record presents multiple instances of deeply ingrained and pervasive bias against prosecutors and law enforcement officers--and, by extension, an insensitivity to victims of crime. Moreover, the nominee's judicial demeanor and courtroom conduct, in my judgment, undermines respect for the rule of law and, instead, tends to bring the law into disrepute. This nominee's judicial service is replete with instances of demonstrated leniency towards criminals, an adversarial attitude towards police and disrespect toward prosecutors unmatched by any other present or former jurist with whom I am familiar. That is a very serious charge from the prosecutor, someone of the same party as the President who nominates this judge. I quote again: This nominee's judicial service is replete with [full of] instances of demonstrated leniency toward criminals, an adversarial attitude toward police and disrespect toward prosecutors unmatched by any other present or former jurist with whom I am familiar. The words ``full of'' were my amplification. Her text did not include that. Other local law enforcement officials who feel that this is a nomination which should not go forward--the Northampton County District Attorney, John Morganelli, another Democrat, announced his all-out opposition to this nomination on January 6, 1998. Mr. Morganelli provided members of the committee with a letter detailing the numerous incidents of unprofessional conduct that have marked Judge Massiah- Jackson's tenure on the State trial bench. The concluding paragraphs of that letter are worth quoting at length: [The] record is one of an unusually adversarial attitude toward the prosecution and police. Much personal animosity towards prosecutors and police in general. Other portions of her record indicate a tendency to be lenient with respect to criminal defendants. I continue with his letter: This judge sat as a fact finder in the vast majority of her cases because criminal defendants almost always felt it advantageous to waive their right to a jury trial in order to present their case directly to the judge. * * * In addition, she has shown a lack of judicial temperament with respect to vulgar language from the bench on the record and much of it off the record. Also, as indicated above, Judge Massiah-Jackson has attempted to meddle with the appellate process in Pennsylvania by contacting appellate courts and improperly attempting to influence appellate decisions. Her comments, conduct, record and lack of judicial temperament by itself should call into question her stature to serve as a Federal Judge. Numerous District Attorneys and police organizations in the Commonwealth of Pennsylvania oppose this nomination as a slap in the face to the law enforcement community. That is the conclusion of District Attorney Morganelli's letter, opposing the confirmation of this judge. In addition, the Executive Committee of the State of Pennsylvania's District Attorneys Association has unanimously voted to officially oppose the nomination. On January 8 the Executive Committee of the Pennsylvania District Attorneys Association, in a unanimous vote, officially opposed the nomination. The President of the association wrote a letter on January 26, expressing the association's opposition. I would just comment it is not usual for prosecuting attorneys, or for district attorneys, or for police organizations to attack judges, especially judges who are sitting as judges in their jurisdictions, the same judges they have to go before on a regular basis in seeking to effect justice in the society, to make sure we have the right law enforcement, the right prosecution, the right conviction and the right detention of those who have been deemed guilty of a crime. It is not comfortable, it is not easy, it is not expected. It is, I think, fair to describe it as rare, that someone would, as a prosecutor, or that the association of prosecutors, or that the police, or the associations of police, would come forward and make statements that say not only is this the worst judge I have ever seen but this is the worst judge of which I have any awareness. These are individuals who have a substantial awareness of the judicial system as a result of their broad experience in the system. If my recollection serves me correctly, the district attorney in Philadelphia, Lynne Abraham, is a former judge herself. She has an ability to know what the circumstances of the judge's responsibilities are. And when she comes forward to say that this judge is a judge that is so out of touch with the balance necessary to accord fairness in the system by being so predisposed to the defendant's position and antithetical to the prosecutor's position, and antagonistic to the position of the Commonwealth as opposed to that of the individual who is seeking to be declared innocent of the charges, she just indicates that we can do better. And I think that is really the case that we have here. The pool of legal talent in Pennsylvania is not shallow. We have talked about Philadelphia lawyers all across the country for a long time, because Philadelphia is known as a center for individuals who know how to work with the law and to do it effectively, who know what their responsibilities are and to make sure that those responsibilities can be carried out in the best interests of their clients. And I believe that there are those in that community who could well serve this President as nominees and could well serve this country as nominees. And I believe it is the responsibility of the U.S. Senate, when you have a nominee who is not of the caliber and quality that is appropriate for membership on the Federal bench, for the Senate to stand up and say so. And I believe that is our responsibility here. I don't believe that the Founding Fathers of this great country put the U.S. Senate in the stream that leads to the Federal judiciary so that it could act in a way which is a rubberstamp, so that it could say, well, in spite of the fact that this individual is an affront to the judicial system, disrespects it with profanity, disrespects its participants by profaning them and their conduct, is so lenient with criminals that it causes major questions, has to be reversed on criminal appeals and, when asked about it, denies ever being reversed until the appeals are found--I don't think we have to have that kind of person. I don't think we are here to pass that kind of person through to a lifetime tenure, to a system which will, really, give her great latitude in imposing upon the people of this country the authority of the United States in demanding or commanding adherence to the law. I really think that we can do better. And I think we ought to do better. It is not hard for us to do that. Surely we have cooperated 90, 95 percent--I don't know--of the time, that these cases go through. Most of them never even get debated. This case was--they insisted that we debate. When I was last at a committee meeting I thought we should not move this case to the floor for debate. There was an outcry, a substantial, significant outcry, insisting that we move this case to the floor for debate. Now that we have moved it to the floor for debate there is a substantial outcry to move it back to the committee. I think the real fact of the matter is we know, we know enough about this case to say this is not an individual that we want to welcome into the lifetime tenure of the Federal judge. It does not mean the individual cannot have merit, cannot do different things, is banished from any other responsibilities. It is simply someone who is not suited to be endowed with the authority of a Federal judge, a serious responsibility in this society and culture. I suppose we can let this individual go back for additional committee hearings or additional deliberations. But in my view that is a mistake. And, in my view there are times when the Senate should simply act as the Constitution calls upon it to act, that is to either provide the advice and consent which is appropriate and constitute the nominee as a member of the judiciary or deny the advice and consent and move on because America can and should do better. I yield the floor.

Mr. ASHCROFT

Mr. ASHCROFT. I allocate myself such further time as I may consume in making this next point. Mr. President, Ms. Morrow's supporters argue that her comments about judicial activism are taken out of context or misinterpreted, but I don't believe that they are. Her supporters will have a harder time explaining away Ms. Morrow's disparaging and elitist views about direct citizen involvement in decisionmaking processes. If she is not clear about saying that she would displace the legislative function by being a judicial activist in one arena, that is, when it comes to interpreting the law and expanding the Constitution, she is very clear about her disrespect for legislation enacted by the people. In 1988, she wrote an article and smugly criticized the ballot initiative as used by the citizens of California. Here is what she wrote in that article: The fact that initiatives are presented to a ``legislature'' of 20 million people renders ephemeral any real hope of intelligent voting by a majority. What she is saying, in other words, is that whenever the people get involved, decisions will not be intelligent. She suggests that the courts are going to have to step in and do the right thing, what they know to be better than what the people have said, and take over. I think a lot of Americans would be concerned if the courts simply took over. By the way, I noted there was a substantial list of letters that were sent to the desk on behalf of individuals that endorsed Ms. Morrow. I ask unanimous consent that the list assembled by the Judicial Selection Monitoring Project be printed in the Record. It lists more than 180 different grassroots organizations, from the American Association for Small Property Ownership to the Independent Women's Forum to the Women for Responsible Legislation, that oppose this nomination.

Mr. ASHCROFT. Mr. President, I yield to myself the remainder of the time and ask you to inform me when there is 1 minute remaining. I am concerned about this nominee who has indicated that when the people are involved in developing the law through a referendum, you don't get intelligent lawmaking. I am concerned about that because from her writings it appears that the Ninth Circuit Court of Appeals embraced that very view. When the Ninth Circuit Court of Appeals sought to set aside the California voters' commitment to term limits, they did so based on what they considered to be the lack of expertise of the people. Here is what Judge Reinhardt said when he set aside the term limits initiative in California: The public lacks legal or legislative expertise--or even a duty to support the Constitution. Our usual assumption that laws passed represent careful drafting and consideration does not obtain. Where might he get an idea like that idea, to allege that the people are disregarded because they don't have legal training. Here is what Ms. Morrow said: The fact that initiatives are presented to a legislature of 20 million people renders ephemeral any real hope of intelligent voting by the majority. This is the judge who has been reversed over and over again when the California Ninth Circuit was reversed 27 out of 28 times by the Supreme Court. They are embracing this philosophy in those kinds of items. Reinhardt said: The public . . . lacks the ability to collect and study information that is utilized routinely by legislative bodies. Where could he have gotten that? Same philosophy as Ms. Morrow who said: . . . propositions are often lengthy and difficult for a layperson to understand. The public . . . casts its votes for initiatives on the basis of 30- and 60-second advertisements. Both of these reflect a distrust of the people: One an activist judge, one of the most reversed judges in history; the other an offering of this administration for us to confirm. I am calling into question the judgment and the respect that this nominee has for the people. And it is based on her statements. By contrasting her to Judge Reinhardt, I am trying to point out that the same kind of mistakes made by the most reversed judge on the ninth circuit are the kinds of mistakes that you find in Ms. Morrow's writings, and I think it reflects a confidence in lawyers and judges that permits them to do things that the law doesn't provide them a basis to do. The law says the people of California have a right, if they want to have term limits, to have an initiative that embraces it. But what does Judge Reinhardt say? Judge Reinhardt says: Before an initiative becomes law, no committee meetings are held, no legal analysts study the law, no floor debates occur, no separate representative bodies vote on the bill. . . . He does that as a means of setting aside the law, saying the people are simply too ignorant. They have not studied this carefully enough. Where would Morrow be on that kind of issue? According to her writings: In the legislative, many eyes review a bill before it is put to a final vote. Legislative counsel [another lawyer] examine it for technical or legal shortcomings. Various committees look at it from different perspectives. Pros and cons are debated. We have already in California and on the west coast in the Ninth Circuit Court of Appeals, a court of appeals that is reversed constantly. In their setting aside of initiatives, in their invasion of the province of the people, and in their invasion of the legislative function, they take a page out of the writings of this candidate. But I don't think we need more judicial activists. I think it is clear she believes the cutting edge of society should be the law and its profession. I think the cutting edge needs to be the legislature and the people expressing their will in initiatives. That is where the law should be changed. The engine of social change should not be the courts. The engine for social change should be the people and their elected representatives. When the people enact a law through the initiative process, it is imperative that the will of the people be respected. Even if you graduate from the best of law schools and you have a great understanding of legal principles, our country says that the people who cast the votes are the people whose will is to be respected. Because she seems to believe otherwise, I do not think this nominee should be confirmed by the U.S. Senate.

Mr. ASHCROFT. Mr. President, thank you very much. I yield myself so much time as I may consume, and I ask that the Chair inform me when I have consumed 15 minutes. I thank you very much for allowing me to participate in this debate. It is appropriate that we bring to the floor nominees who are well known to the committee for debate by the full Senate. I commend the chairman of the committee for bringing this nomination to the floor. I have no objection to these nominations coming to the floor and no objection to voting on these nominees. I only objected to this nominee coming to the floor to be approved by unanimous consent because I think we deserve the opportunity to debate these nominees, to discuss them and to have votes on them. So many people who are not familiar with the process of the Senate may think that when a Senator says that he wants to have a debate that he is trying to delay. I believe the work of the Senate should be done in full view of the American people and that we should have the opportunity to discuss these issues, and then instead of having these things voted on by unanimous consent at the close of the business day with no record, I think it is important that we debate the nominee's qualifications on the record. I think it is important because the judiciary is one-third of the Government of the United States. The individuals who populate the judiciary are lifetime appointments. The United States Constitution imposes a responsibility on the Senate to be a quality screen, and it is the last screen before a person becomes a lifetime member of the judiciary. So we need to do our best to make sure that only high-quality individuals reach that level, individuals who have respect for the Constitution, who appropriately understand that the role of the courts is to decide disputes and not to expand the law or to somehow develop new constitutional rights. The legislature is the part of the body politic that is designed to make law. The courts are designed to settle disputes about the law. It is against this background that I am pleased to have the opportunity to debate the nomination of Margaret Morrow. Let me begin by saying that Ms. Morrow is an outstanding lawyer. No one wants to challenge her credentials. No one believes that she is not a person of great intellect or a person of tremendous experience. She is a person who has great capacity. It has been demonstrated in her private life, her educational record and in her life of service as an officer of the California Bar Association. The only reservations to be expressed about Ms. Morrow, and they are substantial ones in my regard--they are not about her talent, not about her capacity, not about her integrity--they are about what her interpretation of the role of a judge is; whether she thinks that the law as developed in the court system belongs on the cutting edge, whether she thinks that the law, as developed in the court system, is an engine of social change and that the courts should drive the Nation in a direction of a different culture and a direction of recognizing new rights that weren't recognized or placed in the Constitution, and that needed to be invented or developed or brought into existence by individuals who populate the courts. That, I think, is the major question we have before us. So let me just say again, this is an outstanding person of intellect, from everything I can understand a person of great integrity, a person whose record of service is laudable and commendable. The only question I have is, does she have the right view of the Constitution, the right view of what courts are supposed to do, or will she be someone who goes to the bench and, unfortunately, like so many other lawyers in the ninth circuit, decide that the court is the best place to amend the Constitution? Does she think the court is the best place to strike down the will of the people, to impose on the people from the courts what could not be generated by the representatives of the people in the legislature. So, fundamentally, the question is whether or not this candidate will respect the separation of powers, whether this candidate will say the legislature is the place to make the law, and whether she will recognize that courts can only make decisions about the law. Will she acknowledge that the people have the right to make the law, too? After all, that is what our Constitution says, that all power and all authority is derived from the people, and they, with their elected representatives, should have the opportunity to make the law. It is with these questions in mind that I look at some of the writings of this candidate for a Federal judgeship, and I come to the conclusion that she believes that the court system and the courts are the place where the law can be made, especially if the people are not smart enough or if the people aren't progressive enough or if the Constitution isn't flexible enough. I can't say for sure this is what would happen. I have to be fair. I have to go by what she has written. I will be at odds with the interpretation of some of the things said by the committee chairman. I respect the chairman, but I think that his interpretation of her writings is flawed. In 1995, in a law review comment, Ms. Morrow seemed to endorse the practice of judicial activism, that is judge-made law. She wrote: For the law is, almost by definition, on the cutting edge of social thought. It is a vehicle-- Or a way-- through which we ease the transition from the rules which have always been to the rules which are to be. She is saying that the law is the vehicle, the thing that takes you from what was to what will be. I was a little puzzled when the committee chairman said that the committee found that she didn't mean the substantive as expressed in the courts and the like. Let me just say I don't believe the committee made any such findings. I have checked with committee staff, and it is just not the case that the committee made findings. It is true that a majority of the members of the committee voted this candidate to the floor, but the committee didn't make findings that this was not a statement of judicial activism. Frankly, I think it is a statement of judicial activism, despite the fact that Ms. Morrow told the committee that she was not speaking about the law in any substantive way, but rather was referring to the legal profession and the rules governing the profession. The law, by definition, is on the cutting edge of social thought? Social thought doesn't govern the profession, social thought governs the society. The transition of the rules from the way they have always been to the rules which they are to be? I think it is a stretch to say that this really refers to the legal profession. If she meant that the legal profession is a vehicle through which we ease the transition from the rules which always have been to the rules which are to be, that doesn't make sense. Clearly she is referring to something other than the legal profession or the rules of professional conduct. Some have suggested that because Ms. Morrow initially made these remarks at a 1994 Conference on Women and the Law, that it is plausible that she was referring to the profession and not to the substantive law. But I think it is more likely that her statement reflects a belief that the law can and should be used by those who interpret it to change social norms, inside and outside of the legal profession. Truly, that is a definition of activism, the ability of judges to impose on the culture those things which they prefer rather than have the culture initiate through their elected representatives those things which the culture prefers. Frankly, if it is a question of a few in the judiciary defining what the values of the many are in the culture, I think that is antidemocratic. I really believe that the virtue of America is that the many impose their will on the Government, not that the few in Government impose their will on the many. Reasonable people can disagree on the proper interpretation of Ms. Morrow's statement. Others can argue about whether or not hastening social change is a proper role for judges in the courts. But I think it is fair to conclude that Ms. Morrow's comments were an endorsement of judicial activism. In 1993, Ms. Morrow gave another speech that suggested approval of judicial activism, quoting William Brennan, an evangelist of judicial activism. Morrow stated: Justice can only endure and flourish if law and legal institutions are ``engines of social change'' able to accommodate evolving patterns of life and social interaction in this decade. She said these remarks were not an endorsement of activism. She told the Judiciary Committee the subject of the comments was, once again, not the law but the legal profession and the California State Bar Association. To say that both law and legal institutions are engines of social change I think begs the question of whether you are just talking about the State bar association. In this statement, Ms. Morrow refers specifically to the law and legal institutions. Ms. Morrow's words were a call for activism to those who administer the law. Again, the committee chairman indicated that the committee found that she was referring to those things she referenced in her testimony. That may have been the conclusion of some on the committee as a basis for how they voted, but I don't believe the committee made any findings about what her statements meant. Ms. Morrow was the president of the California State bar in 1993 and 1994, one of the things for which she is to be applauded. She was first woman elected president of the bar. But according to press reports, her first bar convention as president was ``marked by only one big issue: gun control.'' Even U.S. Attorney Janet Reno traveled all the way to the San Diego convention to exhort attendees to work against Americans' ``love affair with guns.'' And although a 1990 U.S. Supreme Court decision prohibited the California bar from using dues for political activities and specifically listed advocacy of gun control legislation as an example, Ms. Morrow said the bar should consider the Court's ruling, ``assess the risks, and then do what is right.'' So looking into the face of a Supreme Court decision of the United States, Ms. Morrow said, ``Yeah, we should figure out what we think is right and assess the risks,'' I suppose of getting caught and what the consequences would be, ``and then just basically do what we think is right.'' I think if we are going to ask someone to undertake the responsibility of administering justice in the Federal judicial system, we have to expect them to accord the Constitution of the United States respect. We have to expect them to accord the rulings of the Supreme Court of the United States respect, and to assess the risks and do what is right is not a philosophy. Frankly, one does not need to assess the risks if one is going to do what is right. If you are going to do what is right, there are no risks. Rather than imply that the Court's prohibition on using bar dues for political purposes may be somehow circumvented or disregarded, Ms. Morrow could have stated her clear intention to respect the Court's decision and to urge her membership to do the same. Ms. Morrow not only has indicated her willingness to use the law ``on the cutting edge'' and to use the law, the legal profession and the courts to change the rules whereby people live and to make law and not just interpret law or decide disputes, she has argued that when the people get involved in making the law, the result is dubious and should be called into question and into doubt.

Mr. ASHCROFT. I think the fact that these grassroots organizations oppose this nomination reflects the fact that they distrust an individual who distrusts the people. Whenever you have someone moving into the Federal court system who expresses in advance the fact that when people get involved in government, it renders an intelligent result ephemeral or unlikely to take place, I think they have a right to be disconcerted and upset. She continued in her article: Only a small minority of voters study their ballot pamphlet with any care, and only the minutest percentage takes time to read the proposed statutory language itself. Indeed, it seems too much to ask that they do, since propositions are . . . difficult for a layperson to understand. Basically, this says that lawyers are smart enough to understand these things but ordinary people cannot and, as a result, cannot make intelligent decisions. I have noted before that it is not a requirement to be a lawyer to be a Member of the Senate. Ordinary people can run for the U.S. Senate. And they do. You need only be 35 years old. I have also noticed that, very frequently, only a small minority of the Senators have read, in the totality, the legislation which is before the Senate. If you are going to say that laws are not effective and should not be respected because they were not read thoroughly or not everybody who voted on them was a lawyer, that would be a premise for disregarding any law passed in the United States. It would be a premise for saying that the laws of the United States are not to be accorded deference by the courts. And sometimes I think that is the way the courts look at them. They look at the laws that are enacted by the Congress and they say, ``Well, we're going to have to expand that. We're going to have to change that. They weren't smart enough. The representatives of the people weren't smart enough. They didn't know what they were doing.'' Frankly, this distrust of democracy is the kind of thing that provides the predicate for judicial activism where individuals substitute their judgment for the law of the Constitution, where courts substitute their preferences for the people's will as expressed in the law. This has been a particular problem with the Ninth Circuit Court of Appeals, which has been striking down propositions approved by the voters of Californians right and left. Proposition 140. A three-judge panel affirmed a decision by Judge Wilkin, a Clinton appointee, to throw out term limits for State legislators. The ninth circuit en banc reversed and upheld the constitutionality of the initiative. Here you have it. The people of California decide they want term limits, and you have a Federal judge who thinks, ``Well, they don't know what they're doing. They're just people. They aren't lawyers. They didn't read this carefully enough,'' and it is set aside. That is the attitude we cannot afford to replicate there. Proposition 209. Judge Henderson struck down this prohibition of race and gender preferences. People of America do not want quotas and preferences. They want to operate based on merit. So the people of California did what the people should do when they want something in the law, they enacted it through the constitutional method of passing an initiative. But the judge, Federal judge, thinking himself to be superior in wisdom to the voters--maybe the judge had been reading the article by Ms. Morrow that said, ``The fact that initiatives are presented to a `legislature' of 20 million people renders ephemeral any real hope of intelligent voting by a majority''--struck down that initiative. Proposition 187. This law denying certain public benefits to illegal aliens was declared unconstitutional by another judge. Proposition 208 was recently blocked in its enforcement by Judge Karlton. Over and over again in California we have had this problem caused by judges who basically think that the initiatives of the people are not due the respect to be accorded to enactments of the law. And when judges place themselves above the people, when judges elevate their own views to a point where they are saying that they have a legislative capacity to say what ought to be the law rather than to resolve disputes about the law, I think that is when we get into trouble. Now, many confirmation decisions will require Senators to anticipate what will happen. We cannot really know for sure what is going to happen. Almost 4\1/2\ years ago the Senate confirmed, by unanimous consent, without a vote, Claudia Wilken to be a district court judge in the Northern District of California. She was asked about things like this before the Judiciary Committee. And she stated, ``A good judge applies the law, not her personal views, when she decides a case.'' She said judges should fashion broad, equitable relief ``only where the Constitution or a statute'' requires. But she's the judge who said that the term limits initiative passed in California in 1990 was unconstitutional. Now, when the Federal Constitution itself has term limits for the President, you have to wonder if she is not just trying to substitute her judgment and displace the judgment of the people of California. Last April, Judge Wilken ruled that the term limits initiative, which was passed by the voters in the State, and approved by the California Supreme Court--violated the Constitution. The new law, Judge Wilken held, was unfair to those voters who wanted to support a candidate with legislative experience. I wonder if maybe she had been reading the material of the nominee in this case. I wonder if she really believed that ``The fact that initiatives are presented to a `legislature' of 20 million people renders ephemeral any real hope of intelligent voting by a majority.'' The ninth circuit court of appeals, which covers California, is the circuit in which these questions arose. Unfortunately, it is the most active circuit judicially. I think we have to be very careful when we are appointing individuals to courts within that circuit that we do not find ourselves reinforcing this judicially active mentality. Let us just take a look at what kind of legal environment they are in out there. In 1997, the Supreme Court reversed an astounding 27 out of 28 ninth circuit decisions. In 1996, it was 10 out of 12 decisions that were reversed. In 1995, it was 14 out of 17. It is obvious that the ninth circuit is out of control, filled with individuals who believe that the people are to be disregarded, that the intelligence resides solely in the court system. Frankly, I think that is a troublesome problem. Here is what one of the judges on the ninth circuit said, expressing pride in the fact that the court was frequently reversed. Chief Judge Procter Hug said in a recent interview: We're on the cutting edge of a lot of cases. Does the phrase ``cutting edge'' remind you of anything? Another one of those quotes from Ms. Morrow. We're on the cutting edge of a lot of cases. If a ruling creates a lot of heat, that's why we have life tenure. I really believe that life tenure is supported by the need for independence, but it is not to be a license to take over the legislative responsibility of Government. It is not to be a license to be out there on the cutting edge, to be writing new laws, instead of deciding controversies presented by application of old laws. On the ninth circuit, no judge is reversed more than judge Stephen Reinhardt, the renegade judge who in recent years has argued that the Constitution protects an individual's right to commit physician- assisted suicide. Of course, he was reversed by the Supreme Court. He recently ruled that school-administered drug tests for high school athletes violated the Constitution. His creation there of a new constitutional right again was reversed by the U.S. Supreme Court. Finally, Reinhardt argued that farmers lack standing to challenge the Endangered Species Act because they have an economic interest in doing so. This decision also was reversed by the Supreme Court. And just last week, Reinhardt reversed a lower court decision and held employers are prevented by the Constitution from conducting genetic tests as part of their employees' routine physicals--another new constitutional right found by an activist judge. Judge Reinhardt seems to share the arguments made by Ms. Morrow in her article about initiatives. To Reinhardt, the Constitution is not a charter to be interpreted strictly; rather, it is an outline for creative judges to fill in the blanks. I think judges who believe that the Constitution is written in pencil and who think that the Bill of Rights is written in disappearing ink are judges that are out of control. We have to be careful we don't put more individuals on the bench who have a disregard for the separation of powers and who do not understand that what the people do under the authority of the Constitution is valid and must be respected. I see my colleague from the State of Alabama has arrived and is prepared, I believe, to make remarks in this respect. I want to thank him for his outstanding work on the Judiciary Committee. He takes his work very seriously. He is a champion of the Constitution of the United States. He understands that the people are the source of power. He understands well that judges are very important. It is important that we have intelligent judges, capable judges; but also, judges that respect the fact that they have a limited function of resolving disputes. And in so doing they are not to amend the Constitution or extend the law but to rely upon the legislature or the people to do that whenever is necessary. I yield to the Senator from Alabama 10 minutes in which to make his remarks in opposition to this nominee.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I suggest the absence of a quorum.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent the time remaining be yielded to the chairman of the Senate Labor and Human Resources Committee so that he has the custom of concluding the remarks in the Chamber in a way that is favorable to the nominee.

Mr. ASHCROFT. Mr. President, I rise to speak against the confirmation of Dr. David Satcher, and I allocate myself so much time as I may consume, but I ask that I be notified when 8 minutes have expired.

Mr. ASHCROFT. Thank you very much. Mr. President, we live in an information age. We have come to a conclusion and an understanding of an important fact, which is that those individuals who control information and have information are in a position to make good decisions. And, as a matter of fact, the basis of good decisions really determines the outcome of arguments and determines the strategy that will be developed, determines the course of a nation. No one is able to make good decisions without good information. In the computer world, it is put this way: Garbage in, garbage out. If you don't have good information going in, you don't get good information coming out. It is that simple and easy to understand. It works with computers; it also works with the U.S. Senate. If we don't get good information, we can't make good decisions. If we don't get accurate information, we can't make the kinds of decisions the people expect us to make in this office. There are a variety of issues which have characterized the debate as it relates to the potential confirmation of Dr. David Satcher: issues relating to the New England Journal of Medicine's conclusion that the African AIDS studies were unethical and that they were improper; issues relating to the study of newborns and the transmission of AIDS from mothers to their children in the United States; the maintenance of an experiment that left the identification of the children unknown long after we had therapy that would have been available to them if we just identified the children by virtue of the blood samples. We have had the issue of both of those AIDS studies. We have had the issue of partial-birth abortion. We have had the issue about needle exchanges. We have had issues raised in this Chamber about the Accident Prevention Center at the Centers for Disease Control, that center which is so focused, in some respects, on guns and their impact on the lives of Americans. It has been an issue because there has been a suggestion that guns, in some respects, qualify as a disease and has become something that we should address in the Congress. I personally don't believe that the second amendment to the United States Constitution, which guarantees the opportunities of individuals to have guns, is a disease. I think it is a valuable right for this country, and it is one we ought to cherish. But in all of these issues, the ability of the Congress to make good decisions, the ability of the Senate, specifically, to make decisions about a confirmation depends on the reliability and availability of the information. There are some troubling aspects about the unavailability and the unreliability of information that have characterized the information flow in this confirmation proceeding. The Centers for Disease Control seems to have felt that it could selectively provide information regarding the controversial AIDS study in Africa, the study which the New England Journal of Medicine criticized because people were given sugar pills, or placebos, at a time when there was a known therapy. And it is pretty clear that when there is a known therapy, medical ethics say you are not allowed to give people just sugar pills and send them on their way, watching them die. The New England Journal of Medicine took the Centers for Disease Control to task over this. The Centers for Disease Control was asked about it by my office and by others, and a meager stream of information came out. I hold in my hand today a report of May 22, 1997. This report has yet to be delivered to me by the Centers for Disease Control but came into my possession from a third party who had gotten this report through a Freedom of Information Act demand last year. It seems to me that when we ask for information like this, the Members of the Senate ought to be accorded at least the courtesy of the information being provided, but when we read the report, it may well be that it is the nature of the report, it is the content of the report that makes it difficult for them to want to share it with the Senate. Paragraph No. 3 says: Whether the use of a placebo in this study is ethical. So they are still debating 3 or 4 years after the start of this study serious questions at CDC about whether what they are doing is ethical, the way they are treating individuals in these African trials. I personally agree with the New England Journal of Medicine that to treat people as if they are laboratory subjects and not as human beings, to give them placebos when it is known that the HIV virus ultimately is fatal is unethical. But what is important here is, and I quote the language: This concern is because a placebo-controlled trial in the United States would be unethical. Here you have a document from the Centers for Disease Control admitting that for us to do this in the United States to the citizens of the United States would be unethical. I think that is substantial. For me, human beings are indivisible. It says in our Declaration of Independence, we are endowed by the Creator with certain inalienable rights. We don't have superior standing in terms of ethics and expectation because we happen to live in the United States. This flat statement by those in authority at the Centers for Disease Control reporting on this randomized placebo-controlled study in Africa flatly states that a placebo-controlled trial in the United States would be unethical. I find the unavailability of this kind of report to the U.S. Senate in a confirmation process to be troublesome. I think we have a right to be asking for good information. I think absent good information we won't make good decisions. If this were the singular situation in which there had been the absence of information in this confirmation hearing, I might say, ``Well, gee, they have a lot of things and perhaps this is to be overlooked. This must have been an error.'' But early in the debate, needle exchange programs and the support by Dr. Satcher of such programs were raised. Several Senators came to the floor saying he has never supported a needle exchange program; he would never support federally funded needle exchange programs. We asked for information from the CDC about that. We only got the information, frankly, after we had the leader intercede to give us information. When it came, it did show that there was a report from CDC that said that they approved of and thought reasonable and appropriate substantial Federal funding for needle exchange programs. But even--I thank the Chair for the 8-minute warning. I allocate myself 5 minutes additional. So there was a report that said the CDC itself supported substantial Federal funding for needle exchange programs. That is where you give dope addicts needles so that they can shoot up the dope and have less opportunity to be contaminated by a dirty needle. But what was strangely missing, uniquely missing, was the fact that Dr. Satcher had written a cover letter to the report endorsing the report. When I asked for the information, it wasn't forthcoming. Finally, when we insisted, they sent the report, but they didn't send the cover letter of Dr. Satcher. That had to come from collateral sources that we were able to generate. Stonewalling is a problem in Washington, and it is inappropriate to think that we can fail to tell the truth in this city and have the kind of Government that Americans deserve. It is a problem in a variety of settings, but it is a problem as it relates to the U.S. Senate and to this confirmation hearing. Additionally, I asked in my exchanges with the CDC whether or not they ever funded conferences that promoted clean needles, and they said no. They even sent documents showing that there were certain conferences devoted to clean needles which they declined to fund. But then later we find that there are documents, as the agenda of conferences, that reveal the cosponsorship of the Centers for Disease Control and other so-called health agencies that are designed exclusively for the purpose of clean needles. The name of the conference was ``Getting the Point''--the needle point. We can debate needle exchange programs. There are very serious ethical problems in providing dope addicts with clean needles. What is a young person to think when the junkie comes up and says, ``The Government provides us with these clean needles.'' Must be OK to use dope, to have tax dollars spent by Americans to provide clean needles to dope addicts so that they can focus their activities and operate safely to inject drugs. The folks who pay taxes in those neighborhoods where the clean needles are distributed must wonder about the commitment of their Government to protect them rather than to provide a safe haven for drug users. But this is a disturbing set of circumstances, where we simply have an absence of information as a result of a stonewall on the part of the administration, and I believe that those who provide that approach are not the kind of individuals who ought to be trusted with the responsibilities of Government. I believe an individual who supports needle exchange programs, who would accommodate drug use instead of seeking to curtail drug use, who thinks that the problem is dirty needles instead of the addiction to heroin, is not the type of person who ought to be leading our culture as it relates to drug policy or health policy. I believe that the absence of information and the willingness to stonewall and not provide information does not characterize the way in which we would want to deal with our own doctors, our family doctors, and certainly would not characterize the way we would expect the family doctor of the United States of America to deal with us. It is in that respect that I think we understand that the absence of information keeps us from making good decisions--garbage in, garbage out. And when the agency decides to provide to the U.S. Senate, selectively, information which reinforces what it wants us to know, but withhold information about things that it hopes we do not find out, we should not reward that kind of behavior, that stonewalling, if you will, that absence of truth, that selective revelation of what they want us to know but not what we need to know. We should not reward that with confirmation. There is an epidemic in Washington, DC, of bureaucracy that feels like it can tell people only what they think the people want to know. It is because there are those in the bureaucracy who feel they know so much better than the people. But that is contrary to the values of America. The real value of America is not that the values of Washington, DC, be imposed on the people. The genius of this democratic republic is that the values of the people would be imposed on Washington, DC. For the values of the people to be understood, they have to be recognized and accorded dignity and respect, and they have to be formed in the context of information which is complete and thorough. Mr. President, I reserve the remainder of my time. Mr. FRIST addressed the Chair.

Mr. ASHCROFT. Would the Senator yield?

Mr. ASHCROFT. Mr. President, would you please inform the Chamber of the remaining time for each side.

Mr. ASHCROFT. Would the Chair please notify me when 2 minutes remain.

Mr. ASHCROFT. Mr. President, I suggest the absence of a quorum and ask unanimous consent the time be allotted equally to both sides.

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ASHCROFT

Mr. ASHCROFT. I wondered if the Senator had a question of me. You asked that I stay, and I wonder if you had a question. If you do, I will be pleased to answer it.

Mr. ASHCROFT. I have thoroughly reviewed the record of Judge Massiah- Jackson.

Mr. ASHCROFT. I have thoroughly reviewed the record of Judge Massiah- Jackson.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask for the regular order.

Mr. ASHCROFT. Thank you, Mr. President.

Mr. ASHCROFT. May I inquire as to the state of business in the Senate.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise to continue my argument and my debate in regard to this candidate for Federal judgeship nominated by President Clinton. Earlier in the day, I had raised several objections to this particular nomination, and in response to my objections, a number of answers were developed on the part of the Senator from Pennsylvania. I want to return to my objections. I think they are well-founded, I think they are important, and I think they should be observed and understood by the Senate. I raised the objection today that the absence of judicial temperament on the part of this judicial nominee was an infirmity which should be considered by the Senate. In particular, I said that she had used the foulest of profanities known to the English language in open court and in reference to a prosecutor. In explaining that, a proponent of this nomination indicated, ``Well, everyone has used profanity at one time or another.'' Let me just point out that I think the use of profanity in open court by the judge presiding over the court is different than the fellow who hits his finger with a nail while fixing the fence in the backyard. As a matter of fact, I think it would be important for me to just outline just what happened in this instance. In the case of Commonwealth v. Hannibal, in response to a prosecutor's attempt to be afforded an opportunity to be heard--the prosecutor was asking for the judge's attention--the following exchange took place on the record: The Court [judge]: Please keep quiet, Ms. McDermott. Ms. McDermott [for the Commonwealth]: Will I be afforded-- -- The Court: Ms. McDermott, will you shut your [blanking] mouth? Judge Massiah-Jackson was formally admonished by the Judicial Inquiry and Review Board for using intemperate language in the courtroom. I realize she has apologized in this respect for having done so, but I think it tells us something about the temperament of the individual involved. I don't think it is very instructive just to concede that other people may have used profanity at some place or on the ball field or in the cloakroom. The use of profanity in this Chamber would be a serious affront to this Chamber, as would any personal attack or other indiscretion or discourtesy in this Chamber. But let me go to a second example that relates to the judicial temperament displayed by this individual. The case of Commonwealth v. Burgos and Commonwealth v. Rivera. During a sentencing proceeding, the prosecutor told Judge Massiah-Jackson that she had forgotten to inform one of the defendants of the consequences of failing to file a timely appeal. Such a failure would prejudice the Commonwealth on appeal. Judge Massiah-Jackson responded to this legal argument with profanity, stating: ``I don't give a [blank],'' and the word is probably imaginable. A district attorney, John Morganelli, the Democratic District Attorney of Northampton County, Pennsylvania, has suggested that the reason there are not more instances of this foul language on the record is that Judge Massiah-Jackson's principal court reporter routinely ``sanitized the record,'' and the instances I have referred to here occurred in settings where, according to District Attorney Morganelli, there was not the regular court reporter. Now, I know that people lose their temper and that people use profanity, but I think these incidents reflect the absence of the requisite judicial temperament, but I think it reflects more than that. When you indicate to officers of the court that you are disparaging their character, when you describe someone's mouth with foul language, you are not just using foul language, you are attributing a character deficit to an officer of the court, a prosecutor. I think that is unacceptable. Perhaps those would be the kinds of things to be ignored or overlooked or to pass by, but I find it disconcerting. I find it disconcerting that it would be suggested that, well, since everybody uses profanity, it's OK for judges to use profanity in open court. I raised the issue earlier today of the contempt for prosecutors and police officers on the part of Judge Massiah-Jackson. It was suggested that the fact that she revealed two undercover police officers and pointed them out to be observed in the courtroom was a way of threatening their safety, because drug dealers would have an extra chance to look at them and know who they are and to be cognizant of the fact that they might be persons from whom a drug buy might be made sometime and, be careful, these people would be part of a prosecution effort. The Senator defending the judicial nominee of the President indicated, ``Well, these people had already testified in court, so it perhaps didn't matter.'' Well, it may not have. It may have been that during the testimony, they were seen by the other people. But let's look exactly at what Judge Massiah-Jackson said about these individuals and see if it tells us something about whether or not we would want this kind of person to be a Federal judge appointed for life, a Federal judge endowed with the authority of the United States of America, answerable to no one. As the officers were leaving the courtroom, the judge told spectators in the court: Take a good look at these guys and be careful out there. I submit to you that for a judge to say, take a good look at these police officers and basically say, ``Watch out for them, they're the guys who might apprehend you in your nefarious activities,'' tells us something about the judge. I quoted earlier the president of the Philadelphia Fraternal Order of Police, who said that the officers involved felt like this was a threat to them, that it would expose them additionally to bodily harm. It was suggested by a Senator defending the nomination that that was unreasonable, and it may not be as big a threat as some might think it to be, but Detective Sergeant Daniel Rodriquez confirmed the outrageous courtroom incident in a signed letter to the Senate. The detective sergeant had the following comments regarding this incident: I thought ``I hope I don't ever have to make buys from anyone in this courtroom.'' They would know me, but I wouldn't know them. What the judge said jeopardized our ability to make buys and put us in physical danger. It may well be that there are arguments that could be expressed in the Senate a couple hundred miles away that it really didn't put these officers in danger. I can't really say whether it would or it wouldn't, but I am prepared to take the word of the police officer involved, and I am prepared to consider his statement to be honest, and I am prepared to understand that he feels restrained now as a police officer in a way that he wouldn't have felt restrained previously. It appears to me that Judge Massiah-Jackson was willing to make statements which would impair the capacity of police officers to function. Detective Sergeant Daniel Rodriquez felt strongly enough about it to make such a comment in writing. Detective Terrance Jones, the other undercover officer that was identified and disclosed and about whom the warning was issued to the people in the courtroom by Judge Massiah-Jackson, also confirmed the facts of the situation in a signed statement to the committee staff. He stated that the ``comments jeopardized our lives.'' It may be that there are those on the floor of the Senate who don't take the comments that seriously. I really think that Judge Massiah- Jackson must not have taken seriously the threat to the integrity of these officers; she must not have believed them. Maybe some Senators don't believe them either. But Detective Jones said that the comments of the judge jeopardized the lives of police officers. Maybe not, but I would tend to think if I were an undercover police officer, that kind of exposure and identification, even if you had already testified, they must have felt that there was something there that was substantially threatening. He wrote in his letter: As a law enforcement officer who happens to be an African- American, I am appalled that self-interest groups and the media are trying to make the Massiah-Jackson controversy into a racial issue. This is not about race, this is about the best candidate for the position of Federal judge. And it is obvious he doesn't think the best candidate is Judge Massiah-Jackson after she, in fact, jeopardized his life, according to him. Earlier today, I also raised the point about contempt for prosecutors and police officers, and that seemed to be construed as some sort of inappropriate attack. In this case, let me talk about another example, Commonwealth v. Hicks. In an action that led to a reversal by the appellate court, Judge Massiah-Jackson dismissed charges against the defendant on her own motion. Although the prosecution was prepared to proceed, the defense was not ready because the defense was missing a witness. A police officer who was scheduled to testify for the defense apparently had not received his subpoena. The defense requested a continuance, saying, ``OK, we'll try this later. We'll clear up this mixup concerning the subpoena.'' The Commonwealth stated it had issued the subpoena. The defense did not allege any wrongdoing or failure to act on the part of the Commonwealth. It did not say the Commonwealth failed to issue the subpoena, that they fouled this up, that the case was fouled up as a result of misdeeds on the part of the State or the Commonwealth. Nevertheless, without any evidence or prompting from the defense counsel, Judge Massiah-Jackson simply did not believe that the Commonwealth's attorney subpoenaed the necessary witness. So here you have the defense unprepared to go forward, and the judge held the Commonwealth liable for the defense's unpreparedness, and on the court's own motion dismissed the case. Here is a judge that expresses her contempt for the court and the prosecutors, profaning the court and profaning the prosecutors. Here is a judge who expresses her contempt for police officers by inappropriately identifying them and warning the community against police officers. You have a judge who is willing to dismiss cases on her own motion even when the defense is willing to just take a continuance to clear the matter up and to bring the witnesses to court. What it turns out to be in the case is that the missing defense witness had been on vacation. The subpoena had been issued by the Commonwealth. The officer had not received it, but the Commonwealth had done everything it possibly could to issue the subpoena to help assist the defense in the preparation of the trial by providing the necessary witness. And Judge Massiah-Jackson's decision obviously was reversed on appeal as an abuse of discretion. But it tells us something. It tells us something about this judge and this judge's attitude toward police officers and prosecutors. The appellate court concluded, having carefully reviewed the record: We are unable to determine the basis for the trial court's decision to discharge the defendant. Indeed, the trial court was unable to justify its decision by citation to rule or law. When a judge does something and cannot cite any rule or any law to support it, the judge is just imposing her own preference, her own personal preference in the matter. The imposition of judges' personal preferences is one of the real challenges we face in this country in a crisis of what I call ``judicial activism.'' One of the other issues I raised regarding Judge Massiah-Jackson is the issue of leniency in sentencing. Here is an example. Commonwealth vs. Nesmith. The defendant had a criminal history of 3 prior juvenile arrests and 1 adjudication, 19 prior adult arrests, 8 convictions, 3 commitments, 3 violations and 2 revocations. If we were at the right season of the year we could then end with ``and a partridge in a pear tree.'' Nineteen prior arrests, 8 convictions. He was tried and convicted of striking a pedestrian with his car, leaving her seriously injured--broken legs, pelvis, four bones of the back--by the side of the road, fleeing the scene of the crime, and then beating into unconsciousness one of the woman's relatives who tried to thwart his escape. Judge Massiah-Jackson sentenced him to 2 years' probation--probation. This is an individual with eight previous convictions. Judge Massiah-Jackson sentenced him to 2 years' probation, a sentence that deviated more than 3 years below the lowest point of the standard range of the guidelines and more than 2 years below even the lowest point of the mitigated range. The defendant committed these crimes while on parole, having just been released from prison for an assault conviction. Over the Commonwealth's strenuous objection, Judge Massiah-Jackson sentenced him to 2 years' probation. Judge Massiah-Jackson, however, explained that the defendant's actions were ``not really criminal. He had merely been involved in a car accident.'' You wonder about a judge who can look at an individual who hits a pedestrian, flees the scene of the crime, beats into unconsciousness one of the women's relatives who tried to thwart his escape, and then characterizes the activity as merely being the activity of one who has been involved in a car accident. Here is another instance of leniency in sentencing. Commonwealth vs. Freeman. The defendant shot and wounded Mr. Fuller in the chest because Mr. Fuller had laughed at him. I don't know how you know someone is laughing at you or whether they are laughing because they just have a thought of something funny. In any event, the defendant shot and wounded Fuller in the chest because Fuller had laughed at him. Judge Massiah-Jackson convicted the defendant of a misdemeanor instead of felony aggravated assault. She sentenced him to 2 to 23 months--not 2 to 23 years--2 to 23 months, and then immediately paroled him so that he did not have to serve jail time. The felony charge would have had a mandatory 5- to 10-year prison term. Judge Massiah-Jackson explained her decision, stating that ``the victim had been drinking before being shot''--the victim had been drinking before he was shot-- ``and that (the defendant) had not been involved in any other crime since the incident.'' I think the people of the United States of America deserve a judge who will say that an individual who shoots someone, perhaps for smiling or laughing, is an individual who deserves a serious sentence. Here is yet another example of lenient sentencing, Commonwealth vs. Burgos. During a raid on the defendant's house, police seized more than 2 pounds of cocaine, along with evidence that the house was a distribution center--2 pounds of cocaine. The street value of 2 pounds of cocaine is astronomical. The defendant, Mouin Burgos, was convicted. Judge Massiah-Jackson sentenced the defendant only to 1 year's probation. Then-District Attorney Ron Castille criticized Judge Massiah-Jackson's sentence as ``defying logic'' and being ``totally bizarre.'' He commented: This judge just sits in her ivory tower . . .. She ought to walk along the streets some night and get a dose of what is really going on out there. She should have sentenced these people to what they deserve. Well, earlier this afternoon I had the privilege of relating the fact that virtually the entire law enforcement community of Pennsylvania has noticed this predisposition to be antagonistic to law enforcement. The Executive Committee of the Pennsylvania District Attorneys' Association voted unanimously to voice their objection to the appointment of this individual to the Federal bench. The Fraternal Order of Police, both locally and nationally, has expressed its opposition to this nominee. And frankly, the Democrat district attorney in Philadelphia sent a letter saying this is the worst judge that she had ever seen. The letter also states her opinion that whoever is appointed to the Federal district court for that district should be a black woman--that they need to have a black woman on the bench there-- but also stating that Judge Massiah-Jackson cannot be the one. It takes real courage for a district attorney to say that about a judge who will stay in her current role if the Senate heeds the warning of the district attorney. And the district attorney will have to continue to send prosecutors into that court and be involved in that legal environment. But not only did District Attorney Abraham from Philadelphia, who is a Democrat, make such a contention, District Attorney Morganelli also made the same kind of statements, saying that we really have no business confirming an individual whose record is so replete with this kind of abuse. These points are points that I believe are easily understood. It takes a substantial amount of effort to obscure these points. But these points are understood--and they are painfully understood by those who are closest to this situation and involved in the courts on a daily basis: the police officers and prosecutors. Obviously, we would not expect defense attorneys to be here objecting to this nominee. This nominee lacks the fundamental commitment to the judicial system, to respect it, and to respect the participants of it. She has demonstrated that on many occasions. And profanity in the courtroom is important. It reflects a disregard for the court. But when it is profanity directed to officers of the court, it is a disregard for the system itself. And I do not think it is appropriate to minimize that. It makes a difference to me. I think it makes a difference to the American people whether or not we have judges who respect the institution over which they preside. I raise the issues about the antagonism to the police. It is pretty clear that when you warn the community to be careful of the police, to ``watch out,'' that you reveal a disrespect for this system that we do not need to institutionalize on the Federal bench. And when you use virtually every contrivance that you could possibly imagine, and even then when the appellate court says there is no basis in law, no basis in rule that would support the kind of leniency that you find in some of these cases, I think it is pretty clear that we have an individual whose predisposition is so favorable to the violators of the law that those who would enforce the law and the need for the culture to enforce the law are at a serious disadvantage in a courtroom like that. It is clear to me--very clear to me--that this is a nominee whose resume does not merit reward, whose recommendation by the President should be withdrawn rather than confirmed. During the closing hours of the session last year, prior to the break for the year-end recess, the Judiciary Committee was meeting. There was a debate over whether to send this nominee to the floor. And among those who are now saying that we have to have more meetings and more time in the committee were those who carried me to one of the anterooms off the committee room, and begged me, ``Let's send this to the floor so it can be debated on the floor.'' I said, ``I don't think this is appropriate to send to the floor.'' And they said, ``You don't have to support her on the floor, but do not stop the committee from acting to send her to the floor at this time.'' Frankly, the rules of the committee would have made it possible for me at that time to have stopped this individual from coming to the floor. It just strikes me as ironic that those who prevailed on me to send this nominee to the floor, and to allow her to come to the floor, are now arguing that somehow those of us who want to vote on this candidate on the floor or a withdrawal by the President are doing an injustice--that somehow by accommodating them and providing a basis which would allow the candidate to make it to the floor, that we were now wanting to act on that candidate and somehow wanting to act inappropriately. I think all of that is just so much process--whether you had the committee hearings, and how many you had. The key to this whole situation is, what kind of information do you have? And do you have the capacity to make a good judgment about whether or not to confirm a nominee of the President of the United States? This nominee who disrespects the system, disrespects the participants, disrespects law enforcement, this nominee who has done virtually everything within her power to make it easy on those who have violated the law and tough on those who would enforce the law, does not merit our confirmation. The President ought to withdraw her nomination, and, absent that, the Senate should vote to reject this nomination for the Federal bench. I yield the floor.