Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 174, S. 1281.

Mr. GRAHAM. I ask unanimous consent that the Hutchison amendment at the desk be agreed to; the committee-reported amendments, as amended, if amended, be agreed to; the bill, as amended, be read a third time and passed; the motions to reconsider be laid upon the table; and that any statements relating to the bill be printed in the Record.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, today I wish to recognize the outstanding service and dedication in the field of economic development of Mrs. Patricia M. Dixon, this on the occasion of her retirement from the Economic Development Administration, United States Department of Commerce effective today, September 28, 2005. Mrs. Dixon has served honorably at the Economic Development Administration for 33 years, most recently and prominently as the Economic Development Representative to the State of South Carolina. Her contributions to economic development in South Carolina are numerous and have greatly contributed to the economic progress of the most distressed areas of the State. Her work has been widely recognized most notably by the South Carolina Association of Regional Councils, which awarded her their highest honor, the Outstanding Staff Award in 1991. Mrs. Dixon has demonstrated her work in disaster recovery and base closures, saving jobs, solving solid waste problems, expanding job opportunities and rebuilding tax bases. Her innovative approaches to economic development problems and issues have been replicated in other communities. She also served as the first Federal cochair of the South Carolina Rural Development Council under the President's Initiative for Rural Development. Mrs. Dixon continues to serve on the executive committees of both the North and South Carolina rural development councils. In addition, she was instrumental in the original establishment of revolving loan funds for economic development districts in South Carolina. Mrs. Dixon has garnered the personal and professional respect and admiration of her friends and colleagues at the Economic Development Administration and elsewhere. She represents the finest of qualities in a public servant and has been an incomparable asset to the greater effort of improving quality of life for the people of South Carolina. In conclusion, the retirement of Mrs. Patricia M. Dixon will be a great loss to the EDA and the State of South Carolina, but I wish her great success and happiness in her future.

Mr. GRAHAM

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

Mr. GRAHAM. Madam President, I would like to comment a bit on the nomination of Judge Roberts. I wish to make a political observation. This is certainly a political body, and the nomination process has politics to it. That is not a bad thing. That is to be expected. From a Republican point of view, this is an easy vote. We are inclined to support a President when he is in power making a nomination. But that is not always the case, that every Republican votes for every nominee. I expect that will be the case here. Most of us on our side of the aisle are pleased with the nominee, someone of extraordinary intelligence and legal abilities and seems to be an all around good guy who has served his country well in every capacity that he has been called upon to serve. We will all vote en masse. It is an easy vote for us. To our Democratic colleagues, it is not so easy. Any time you are in the minority, and the Court being an important part of American life and politics, there is a lot of pressure on my Democratic colleagues to say no for different reasons by special interest groups on the left. We certainly have them on the right. Our day will come. If there is ever a Democratic nominee, we will face the same pressure. I would like to compliment my Democratic colleagues. Every one has taken the process seriously. There will be a healthy number of Democratic votes for Judge Roberts. To those who have decided to vote for him, history will judge you well. You have based your votes on the qualifications test. You have seen in Judge Roberts someone who loves the law more than politics. Over time, history will judge you well. One of the highlights of the Bush administration will be the selection of Judge Roberts to be the Chief Justice of the United States. For those who vote no, to a person everyone has struggled with it, thought about it, cast your vote. Generally speaking, the debate in committee and in the Chamber has lived up to the best traditions of the Senate. A few months ago, we were at each other's throats, about to blow up the place. There is plenty of blame to go around, but we have sort of broken that cycle. We have had a confirmation process that is in the best tradition of the Senate. We will go forward, and I hope he gets a healthy number of votes. It looks as if he will. One thing I wanted to take some time to discuss is some of the reasoning given to vote no and make a cautionary tale about some of the suggestions why a ``no'' vote would be appropriate. There seems to be some suggestion that if he does not have an allegiance to a particular line of cases, particularly the right of privacy cases centering around Roe v. Wade, that you can't vote for him. That one case or that line of legal reasoning is so important that without some commitment on his part to uphold Roe v. Wade or the concept of Roe v. Wade, a ``no'' vote would be in order. I would argue that could be applied on our side. Most of us are pro-life. I would say 90 percent of the Republican caucus is pro-life. Probably 90 percent of the Democratic caucus is pro-choice. The country is pretty evenly divided. If we have a litmus test about Roe v. Wade or any other case, that is not doing the judiciary a good service because you are putting a judge in a bad spot. Senator Harkin mentioned the Americans with Disabilities Act, something he should be very proud of. He fought hard to make it part of law, and we are a better Nation for it. There are some cases involving the Americans with Disabilities Act that will come before the Court. Senator Harkin did not think that he could vote yes because he wasn't assured that Judge Roberts would uphold the Americans with Disabilities Act in a way that he felt comfortable with in that States have been exempted from the act. We are all dealing with that issue. The only thing I can say about a guarantee with Judge Roberts, if you are a conservative and would like to see certain Court decisions reversed, if you are a liberal and would like to see certain decisions sustained, the one thing I can promise you about Judge Roberts is he is going to make his decision based on the facts, the briefs, the record in the particular case, and the arguments made by litigants. If he overturns a precedent of the Court, he will apply the four-part test that has been the historical analysis of how to overturn a standing precedent. He is going to do it in a businesslike fashion. He is going to apply the rule of law. If you are looking for an outcome- determinative judge, someone who is going to see things your way before they get your vote, you are going to be disappointed. To be honest, the law is better off for those answers. He is not the only one to refuse to bargain his way on the Court. Justice Marshall was asked by Senator McClellan: Do you subscribe to the philosophy expressed by a majority of the Court in Miranda? That is a major league constitutional case in our Nation's history where police officers have to inform a criminal defendant of certain rights they possess under the Constitution. That was a big deal. When Justice Marshall was coming along, that case had not been long decided. He said: I cannot answer your question because there are many cases pending that are variations on Miranda that I will have to pass on if I were confirmed. Senator McClellan: Do you disagree with the Miranda philosophy? Justice Marshall: I am not saying whether I disagree or not, because I am going to be called to pass on it. Senator McClellan: You cannot make any comment on any decision that has been made in the past? Justice Marshall answered: I would say that on decisions that are certain to be reexamined in the Court, it would be improper for me to comment on them in advance. I couldn't say it better. This idea that Judge Roberts has been evasive, that he will not give you a detailed answer of how he will decide the concept of the right of privacy or how he might rule on interstate commerce clause cases that will certainly come before the Court, he is doing exactly what Justice Marshall did when he was in the confirmation process. He was not going to bargain his way on the Court. Justice Ginsburg gave a very famous quote: I am not going to give you hints, any previews, no advisory opinions about matters that I believe will be coming before the Court. If that is your test, that you have to have a guarantee in your mind that a certain line of cases or a legal concept will be upheld or stricken down, Judge Roberts is never going to satisfy you. It is good for the country that he not try to do that, just as Justice Marshall avoided that dilemma. This is a question by Senator Kohl to Justice Souter: What was your opinion in 1973 on Roe v. Wade? Justice Souter: Well, with respect, Senator, I am going to ask you to let me draw the line there, because I do not think I could get into opinions of 1973. Senator Leahy: You do not have the same sense, to whatever degree you consider privacy in Griswold settled--which is the ability to engage in birth control practices--to whatever extent that is, you do not have in your own mind the same sense of settlement on Roe v. Wade; is that correct? Justice Souter: Well, with respect, sir, I think that is a question that I should not answer. Because I think to get into that kind of comparison is to start down the road on an analysis of one of the strands of thought upon which the Roe v. Wade decision either would or would not stand. So with respect, I will ask not to be asked to answer that question. He said it better than I read it. Bottom line is, he is telling Senator Leahy and Senator Kohl that if you start asking me to compare one case with another that has viable legal concepts, that could be a foreshadowing of how I might rule on matters before the Court, and you are putting me in a bad spot and I like not to do that. I can talk about Griswold, but if you ask me to say am I settled about Roe v. Wade as I am Griswold, then you are basically getting a preview how I might rule on a Roe v. Wade-type scenario. So the idea that Judge Roberts did not want to make such comparisons with the interstate commerce clause is not unknown to the confirmation process. Justice Souter did not want to go down that road with the right of privacy. Judge Roberts was asked probing, hard, clever questions to try to get him to tip his hand. I think what he said was the right answer: I will follow the rule of law. There is a process of how to overturn a case. There is a process of how to decide a case. That process is, you look at the facts, you look at the record, you listen to the arguments of the litigants, and you don't prejudge. I think that will serve the country well. The other concept that is coming into play is what burden does the nominee have, what deference should the Senate give to the President, what is the standard for confirmation. I have always believed that the idea that the President's nominee should be given deference by the Senate is a longstanding concept in our country. I am not the only one who believes that. There is a lot of information out there from our Democratic friends who have gone down that same road and have come to the same conclusion. There are prominent law professors out there who have suggested that there is a presumption of a nomination by the President that the Senate should give great deference to the Presidential nominee and that our advise-and-consent role does not replace the judgment of the President but simply to see if the person is qualified, has the character and integrity and will wear the robe in the way that is consistent with being a judge and not turn it into power grab. Professor Michael Gerhardt, who has advised our Democratic friends about the confirmation process established now and in the past, says: The Constitution establishes a presumption of confirmation that works to the advantage of the President and his nominee. He also said: The presumption of confirmation embodied in the Constitution generally puts the onus on those interested in impeding a nomination to mobilize opposition to it. So the general idea that the President should be given deference, in Professor Gerhardt's opinion, is accepted in terms of the practice of the Senate. Senator Biden, on past nominations, has said: First, as a Member of the Senate, I am not choosing a nominee for the Court. That is the prerogative of the President of the United States and we, Members of the Senate, are simply reviewing the decision he has made. Second: Our review, I believe, must operate within certain limits. We are attempting to answer some of the following questions: First, does the nominee have the intellectual capacity, confidence, and temperament to be a Supreme Court Justice? Second, is the nominee of good moral character and free of conflict of interest that would compromise her ability--in this case it was Justice Ginsburg--to faithfully and objectively perform her role as a member of the Supreme Court? Third, will the nominee faithfully uphold the laws and Constitution of the United States of America? We are not attempting to determine whether the nominee will address with all of us--being the Senate--every pressing social or legal issue of the day. Indeed, if that were the test, no one would pass this committee, much less the full Senate. I could not agree with Senator Biden more. If that is the test, we are OK. If it becomes some subjective test where you have to adopt our view of a particular line of legal reasoning, then I think you have undermined the role of the President, I think you put the Judiciary at a great disadvantage, and I think you will be starting down a road that will not pay great dividends for the Senate. I argue that whatever votes you cast, let's not create standards that will come back to haunt the judiciary. Let's not put people in a bind, in trying to get on the Court, by making decisions or answering questions that will compromise their integrity and violate their judicial ethics to get votes. I do not think anybody is intentionally trying to do that, but there are some disturbing comments about what the standard should be. There have been a couple of occasions on the Judiciary Committee where people have looked at Judge Roberts and said: Convince me, the burden is on you to convince me you will not do the following or you will do the following. I don't think that is helpful. There have been some occasions in the committee where people have acknowledged the great intellect of Judge Roberts. His preparation for the job is not in question. I said in committee: If you question his intellect, people are going to question yours. He is a genius. There is no way of getting around that. He is one of the greatest legal minds in the history of the country, and I think he will be a historic choice by the President. People have suggested: I don't know if he has the real-world experience; I know about your brain, but I don't know about your heart. I suggest it is dangerous for us in the Senate to begin judging other people's hearts. That gets to be a slippery slope. Senator Wyden's statement, I thought, was dead on point. He understands the deference the body gives to the President. He pointed out, in fact, that Justice Ginsburg and Justice Breyer, two Clinton nominees, received 87 votes and 96 votes, respectively. If you start applying heart tests, I can tell you that gets to be so subjective and so political, and I think it is dangerous for the judiciary and not healthy for the Senate. One of the issues Justice Ginsburg wrote about was the idea that prostitution should be a legal activity because to restrict women from engaging in prostitution is basically restricting a woman's right to engage in commerce. You can agree or disagree, but from my point of view, looking at the world as I know it to be as a former prosecutor and former defense attorney who has had some experience in criminal law, if I am using the heart test or the real-world experience test, I would argue that from the experiences I have seen as a criminal defense lawyer and as a criminal prosecutor, that prostitution is hell for women; that if you really understood the life of a prostitute, it would not be a good business endeavor to uphold. It would be something we would want to deter. That is my view based on life as I know it, having been involved in the criminal law business for 20-something years. She said she supported the idea of Federal funding for abortion. If you wanted to try to question someone's heart from a pro-life perspective, I think it would be pretty tough to take taxpayers' dollars and use them for a procedure that millions of Americans find morally wrong. So if we start going down the road of whether we believe a person before us has the right heart or the right real-world experiences, then you are taking the objective qualification, intellect, and character test, not an ideologue--which I think is an appropriate thing--and you are beginning to put subjective elements in it that will not be good for the judiciary and will not be good for the Senate. I can assure you, if we started looking at those type of tests for Justice Ginsburg or Justice Breyer, who was a Democratic staffer, if we started looking at their philosophy or trying to judge their heart or having their value system equate with ours to the point we feel comfortable, then they would not have gotten nearly the votes they did because it is clear to me that not too long ago Republicans, during the Clinton administration, overlooked all the differences they had with Ginsburg and voted for her 96 to 3 and overlooked all the differences they had with Justice Breyer and gave him 87 votes. It is clear to me that Democrats and President Bush 1's administration overlooked all the differences they had with Justice Scalia, and he got 98 votes. It has been mentioned that the President has politicized this process, and there have been all kinds of veiled and direct threats about the next nominee: If you pick so and so, you are going to get a fight. If you pick Priscilla Owen, if you pick Janice Rogers Brown, you are going to get a fight, bringing back the specter of the filibuster. What did the President do when he ran in his campaign? He talked about the Supreme Court and how important it was to him. He said, basically: If I am the President of the United States, on my watch, I am going to nominate well-qualified, strict constructionists to the Court with no litmus test, who will interpret the law and not become legislators themselves. He showed praise and admiration for Scalia and Thomas. I would argue that something is wrong with the Senate if they can vote for someone 98 to 0 and say, If you pick someone like him, they are out of the mainstream and desiring a filibuster. How can you go from 98 to 0, someone similar to the person a decade later, and you filibuster? I would argue that if you do that, it is more about politics than it is about qualifications. I hope we don't do that because the one thing I can assure you, knowing the President reasonably well, is that he is going to fulfill his campaign promise. He is going to send over to this body a well- qualified, strict constructionist, and to expect anything else, you ignored the last two elections. We are not going to sit on the sidelines and watch the election be overturned because of political pressure from the left. That is not going to happen. I do expect the President to listen, as he did before he nominated Judge Roberts. I expect him to consult, as he did before he nominated Judge Roberts. I was very pleased and proud of his pick. I am encouraging the President to listen to our Democratic colleagues, listen to us all. But the most encouragement I could give the President is: Fulfill your campaign promise. Do what you said you would do when you ran for President. Send us over a well-qualified, strict constructionist conservative with no litmus test attached. If you do that, then you will have done a good service for the American people because you got elected twice telling them what you are going to do. I have about 5 minutes, and I will let my other colleagues speak. There were a couple of other comments about concerns with this nominee. It goes back to the memos. This nominee worked for the Reagan administration. He was in his midtwenties, and that has gotten to be a bad thing. Working for Ronald Reagan, I think, is a good thing. Justice Breyer was a Democratic staffer. No one held that against him. He worked for the Democratic side of the aisle in the Senate, and I don't remember anyone suggesting that was a bad thing. Presidents pick people they know and with whom they are comfortable. Clinton was comfortable with Ginsburg, the executive general council for the ACLU, someone we would not have picked. He was comfortable with Justice Breyer, a former Democratic staffer, someone this President would not pick. This President picked someone who worked for his dad, President Bush 1, and Ronald Reagan. There is an argument out there that adopting the Reagan position on extending the Civil Rights Act in toto, without a change, that would lead to a reverse discrimination test called ``proportionality'' and is out of the mainstream. Ronald Reagan won 49 States. If you can win 49 States and be out of the mainstream, I would argue the person saying you are out of the mainstream is out of the mainstream. If you picked someone similar to Scalia and that would justify a filibuster and the guy got 98 votes, there is a disconnect going on here. One of the memos that is in question is a memo that Judge Roberts wrote about the Reagan administration's decision to grant amnesty, for lack of a better word, to illegal aliens in this country. He was writing a memo to suggest how the President should respond to an inquiry by Spanish Today, a Latino, Hispanic newspaper. He talked about the idea that it would be well received in the Hispanic community to grant amnesty. And he said to the effect that Spanish Today would be pleased that we are trying to grant legal status to their illegal amigos. Somehow that one phrase has been suggested that this young man, working for the Reagan administration, committed some kind of a wrong that would deny him the ability to be fairly considered for the Supreme Court 20-something years later. I argue, No. 1, that if you read his writings in terms of what he was talking about, it was not meant to be slanderous, it was not meant to be a derogatory remark--he answered the question fully--that it was not meant to be that way at all. That was a commonly used term in the White House, the term ``amigos,'' and he made a correct observation: that certain Hispanic groups did welcome President Reagan's decision. Bottom line is, if we are going to take a phrase that a person wrote when they were 26, and that is going to be a reason to vote no, woe be to anybody else coming before this committee. I would not want that to be the standard for me. He never apologized because he did not think he had anything to apologize about. So this is much ado, in my opinion, about nothing. You have read his writings. He used Latin, French, and Spanish terms all over the place. He is kind of a witty guy. You may not like his sense of humor, but I think it is given sometimes in that vein. The idea about, you know, more homemakers becoming lawyers, who said we need more homemakers than lawyers--and I think a lot of people agree with that, and his wife happens to be an attorney, by the way--taking these phrases out of context and not looking at life in total is not fair. Not one person came before this body or the committee to say Judge Roberts has lived his life in any way, shape, or form to demean any group in America or individual. It is quite the opposite. He has received praise from everybody he has worked with on both sides of the aisle because he is basically a very good man. So I hope we will not make that the standard in the future. Final thoughts. The vote is not in question in terms of confirmation. The process is in question. And that to me is as important as the vote total. The President is going to get another pick. That is the way it has happened. He has had a lot of things happen on his watch historic in nature. Whatever you think about President Bush, whether you like him or not, he has had to deal with some major league events. Let me tell you, some will go down good and not so good in history. That is the life of a President. But one thing I can say for certain is that his decision to make John Roberts Chief Justice of the U.S. Supreme Court will go down well in history. It will be one of the greatest things he has done as President of the United States because he has picked one of the most uniquely qualified men in American history to serve on a Court that needs all the unity it can find, and this guy will be a consensus builder. The next one is coming and it is coming soon. There is all kind of jockeying already about what the President should do and what he should not do. I hope and pray we will remember the best traditions of the Senate, that we will listen to the Joe Bidens of the past, when he informed us that our role is to give deference to the Presidential nominee, look at their character, intelligence, and qualifications; that we will remember what Senator Kennedy said about Justice Marshall: it is not your job, we shouldn't hold someone's political philosophy against them. We should look at who they are and what kind of judge they would be, would they be fair. So as the next pick is about to be made, the Senate can fight if we want to or we can recognize that elections matter, we can judge the nominees based on their qualifications, integrity, and character, whether they are going to wear the robe in some improper fashion, or we can start putting political tests on the Presidency that will come back to haunt everybody and every party. If you want someone such as O'Connor--President Clinton did not think 1 minute about replacing Justice White with Justice Ginsburg. No one asked him to think about that. This idea that you have to have an ideological match is something new. What is old and stood the test of time is that Presidents get to pick once they win, and our job is to make sure they pick wisely in terms of character, integrity, and qualification. And if we will stick to that test and not substitute our political philosophy for that of the President and not require a political allegiance of the nominee to our way of thinking about a particular line of cases or a particular concept in law, but judge the entire person, we will have served the country well. If we get into the mud and start fighting each other over the second pick, because some people don't like how the election turned out, then we will set a trend that will come back to haunt this body, haunt all future Presidents, and we will be worse off as a nation. With that, I am going to end with the idea I am optimistic that we will not go down that road, we will give the next nominee the respect and deference this nominee has, and we will vote our conscience, and the vote will come and the vote will go. And the worst thing we could do is politicize the judiciary any more than it has been politicized. If you are selected to be on the Supreme Court, there will be millions of dollars to run you down and destroy your life, and that is going to happen on both sides of the aisle if we do not watch it. The best thing the Senate can do is use this opportunity to stand up to those people who want to run down somebody and ruin their life unfairly, because our day will come as Republicans. If we can unite around the idea we are not going to let special interest groups take over the Senate, the country will be stronger. With that, I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I would like to be recognized to speak on behalf of Judge Roberts.

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

Mr. GRAHAM. Mr. President, as Senator Hatch indicated, I do not think we are ``rolling the dice'' at all to vote for this uniquely qualified man. It is not about whether he gets confirmed. He will be confirmed in the Senate by the close of business on Thursday, unless something major happens that no one anticipates now. Judge Roberts will then become the 17th Chief Justice of the U.S. Supreme Court, and his confirmation will receive somewhere in the range of 70-plus votes probably. So his nomination is not in doubt. But I think this whole process will be viewed by scholars of the Court and those who follow the confirmation process, in the Senate particularly, in a very serious way because the vote totals do matter. He will get well over 50 votes, but the reasons being offered to vote ``no'' I think suggest a change in standard from the historical point of view of how the Senate approaches a nominee. One of the things I think they will look at in the Roberts confirmation process is: What is the standard? If it is an objective standard of qualifications, character, integrity, has the person lived their life in such a way as to be able to judge fairly, not to be ideologically driven to a point where they cannot see the merits of the case, then Judge Roberts should get 100 votes. The reason I say that is, not too long ago in the history of our country President Clinton had two Supreme Court vacancies occur on his watch. One was Justice Ginsburg, who sits on the Court now. I believe she received 96 votes. The other was Justice Breyer, who sits on the Court now, who received well over 90 votes. Shortly before that, under President Bush 1's watch, Justice Scalia--a very well-known conservative--received 98 votes. What is the difference between then and now? I think that is a very important point for the country to spend some time talking about. If he receives 70 or 75 votes, then, obviously, there has been a reduction in the vote total for someone who I think is obviously qualified. But in terms of qualifications, I am going to read some excerpts from what some Senators have said about Judge Roberts. Senator Biden: Incredible. Probably one of the most schooled appellate lawyers . . . at least in his generation. Senator Boxer: A brilliant lawyer. Well qualified. Well spoken. Affable. Unflappable. Senator Corzine: Eloquen[t]. A great lawyer. A great litigator. Senator Durbin: A judge [who] will be loyal and faithful to the process of law, to the rule of law. A great legal mind. Senator Feinstein: Very full and forward-speaking. Eloquent. Very precise. Senator Kennedy: An outstanding lawyer. A highly intelligent nominee. Well-educated and serious. A very pleasant person. Intelligent. Senator Kerry: Obviously qualified in his legal education and litigation experience. Earnest. Friendly. Incredibly intelligent. A superb lawyer. Senator Landrieu: Very well credentialed. Senator Obama: Qualified to sit on the highest court in the land. Humble. Personally decent. Very able. Very intelligent. Unflappable. Senator Reid: A very smart man. An excellent lawyer. A very affable person. A thoughtful mainstream judge on the D.C. Circuit Court of Appeals. Senator Schumer: Brilliant. Accomplished. Clearly brilliant. A very bright and capable man. Very, very smart man. Outstanding lawyer. Without question, an impressive, accomplished and brilliant lawyer. A decent and honorable man. There is more, and I will read those later. I would hope half that could be said about me in any job I pursued. The reason those testimonials were offered is, it is obvious to anyone who has been watching the hearings and paid any attention to what has gone on here in the last week or so that we have in our midst one of the most well- qualified people in the history of our Nation to sit on the Supreme Court--probably the greatest legal mind of his generation or maybe of any other generation. I think when history records President Bush's selection of Judge Roberts, it will be seen historically as one of the best picks in the history of this country. The man is a genius. I was there in his presence a whole week. He never took a note. He never asked anybody how to say something or what to say, or get any advice from anyone as to how to answer a question. He had almost complete total recall of memos from 20-some years in the past. Not only did he understand every case he was questioned upon without notes, he understood how the dissenting opinions did not reconcile themselves. I have been around a lot of smart people. I have never been around anyone as capable as Judge Roberts. Now, why would he not get 96 or 98 or 100 votes? Well, some people have said all these glowing things but said that is not enough. There comes the problem. If him being intelligent, brilliant, a superb lawyer, the greatest legal mind of our generation, and well qualified is not enough, what is? What are some of the reasons that have been offered in terms of why anyone could not support this eminently qualified man? Most of the reasons I think have to do with a subjective analysis of the nominee that apparently was not used before. Because if a conservative went down the road of something other than qualifications, character, and integrity, I doubt if a conservative could have voted for Justice Ginsburg or Justice Breyer, if you wanted to use some subjective test as to how they might vote on a particular case or if you had a philosophical test in place of a qualifications test. I will talk about that a bit later. One of the reasons people have offered for a ``no'' vote is that during the questioning period he would not give complete answers to constitutional issues facing the country. I think Senator Kerry said: He is a superb, brilliant lawyer, but I can't vote for him because I don't know how he will come out on the great constitutional issues of our time. Well, I would say that is good. You are not supposed to know how he is going to decide the great constitutional questions of our time because that is done in a courtroom with litigants before the judge. It is not done in a confirmation process where you have to tell people before you go on the Court how you are going to rule. At least one Senator has said: I can't vote for this man because he won't tell me if he will buy into the right of privacy and uphold Roe v. Wade. If that becomes the standard, the hearing could be limited to one question: Will you uphold Roe v. Wade, yes or no? And that is the end of the deal. I would argue if we go down that road as a nation, using one case, an allegiance to one line of legal reasoning, or a particular case, whether you uphold it or whether you will reverse it, then you have done a great disservice to the judiciary because we are not looking for judges to validate our pet peeves as Senators in terms of law. We are looking for judges to sit in judgment of our fellow citizens who will wait until the case is being litigated, listen to the arguments, read the briefs, and then decide. That is not unknown to the Senate. The idea that Court nominees in the past would refuse to give specific answers to specific cases is not unknown at all. Mr. President, I have excerpts from past nominees and questions that were asked. I will read some of these excerpts. This is an abortion question by Senator Metzenbaum to Justice Ginsburg: After the Casey decision, some have questioned whether the right to choose is still a fundamental right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right? That is a very direct question: Do you buy into the precepts of Roe v. Wade? Ginsburg: What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court's recent reaffirmation that abortion is a woman's right guaranteed by the 14th amendment. It is part of the liberty guaranteed by the 14th amendment. She recited the current law and said: There will be lines of attack on the right to privacy. I am going to wait until the record is established. Good answer. Voting rights. Senator Moseley-Braun: I guess my concern in Presley really is a matter of your view of the language of the statute, the specific language of section 5 of the Voting Rights Act, and given the facts of that case whether or not the Court gave too narrow an interpretation of the language in such a way that essentially frustrated the meaning of the statute as a whole. That is a topic before the Senate now. Ginsburg: I avoided commenting on Supreme Court decisions when other Senators raised that question, so I must adhere to that position. The death penalty. Senator Specter: Let me ask you a question articulated the way we ask jurors, whether you have any conscientious scruple against the imposition of the death penalty. Ginsburg: My own view of the death penalty I think is not relevant to any question I would be asked to decide as a judge. I will be scrupulous in applying the law on the basis of the Constitution, legislation, and precedent. Who does that sound like? Ginsburg: As I said in my opening remarks, my own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge. A very good answer. Ginsburg: So I would not like to answer that question any more than I would like to answer the question of what choice I would make for myself, what reproductive choice I would make for myself. It is not relevant to what I will decide as a judge. Now, within that answer she does two things that I think are important. She refuses to give a personal view of the death penalty based on the idea that: My personal views are not going to decide how I will judge a particular case. And for me to start commenting in that fashion will compromise my integrity as a judge. She also said: I am not going to play the role of being a legislator because that is not what judges do. So I would argue not only did she give the right answers, but that is all Judge Roberts has done. When he is advising the President of the United States about conservative policies initiated by the Reagan administration, he is doing so as a lawyer, advising a client. He several times indicated that his personal views about matters are not going to dictate how he decides the case. What will dictate how he decides the case are the facts presented, the law in question, and the record. All right, more about the death penalty. Senator Hatch: But do you agree with all the current sitting members that it is constitutional, it is within the Constitution? Again, talking about the death penalty. This is Senator Hatch trying to get Judge Ginsburg to comment on sitting members of the Court. Ginsburg: I can tell you that I agree that what you have stated is the precedent and clearly has been the precedent since 1976. I must draw the line at that point and hope you will respect what I have tried to tell you, that I am aware of the precedent and equally aware of the principle of stare decisis. Now, who does that sound like? That sounds like Roberts on Roe v. Wade, but she is talking about the death penalty. Hatch: It isn't a tough question. I mean I am not asking---- Ginsburg: You asked me what was in the fifth amendment. The fifth amendment used the word ``capital.'' I responded when you asked me what is the state of current precedents. But if you want me to take a pledge that there is one position I am not going to take, that is what you must not ask a judge to do. So Senator Hatch was trying to draw her out on the death penalty and follow a particular line of reasoning. She says, no, I am not going to pledge to get on the Court to tip my hand there. Hatch: But that is not what I asked you. I asked you, is it in the Constitution, is it constitutional? Again, he was talking about the death penalty. Ginsburg: I can tell you the fifth amendment reads, no person shall be held to answer for a capital or otherwise infamous crime unless, and the rest. But I am not going to say to this committee that I reject the position out of hand in a case as to which I have never expressed an opinion. I have never ruled on a death penalty case. I have never written about it. I have never spoken about it in a classroom. Specter, on women's rights: Would you think it is appropriate for the court to employ in general terms the original understanding of the 14th amendment which you wrote about in the Washington University Law Quarterly as interpretive to women's rights? Ginsburg: I have no comment on that, Senator Specter. I have said that these issues will be coming before the Court. I will not say anything in the legislative Chamber that will hint or forecast how I will vote in cases involving particular classifications. It goes on and on. I have 30 pages here. I will put them in the Record. The idea that Judge Roberts, during his time before the committee, was evasive or unresponsive, different than people who came before him, is not supported by the record. What we have in this confirmation process is a frontal assault on the nominee in terms of pledging allegiance to Roe v. Wade, something that didn't happen to Ginsburg as directly. There is at least one Senator who appears to be basing her vote on the idea that he won't tell me whether he will uphold Roe v. Wade; therefore, I can't vote for Judge Roberts. Again, I argue if that is the standard for a yes or no vote, the standard has changed dramatically. It will be unhealthy for the country as a whole. It will do great damage to the judiciary. It will be a standard Democrats would not want to be applied in the future, I can assure my colleagues. The other issue is about the idea of civil rights, that somehow Judge Roberts' position during the Reagan administration was unfriendly to civil rights to the point that we can't vote for him. Bottom line is, of all the reasons given, that is the most distorted. That is a reason, that is a cut-and-paste job we have seen too much of to try to cast someone in a bad light for doing what their job required of them. John Roberts was in his 20s, working for the Reagan administration. The idea that he would be advising President Reagan about conservative policy initiatives shouldn't surprise anyone. That was his job. The issue of civil rights is important to all of us. One of the worst things you can do is try to question someone's character, integrity, to the point that it puts a shadow of who they are in terms of being sensitive to other people based on race or any other difference. The idea that John Roberts, when he was working for the Reagan administration, showed a hard heart and insensitivity to people's ability to fairly vote is a shameful attack, not supported by the record. It is a cut-and-paste job. It is a distortion of what he said then, what he said now, and we ought to reject it. The issue that was being discussed was whether Ronald Reagan's position of reauthorizing the Civil Rights Voting Act as written was extreme. The Reagan administration said: We will reauthorize the Voting Rights Act as written. The problem in the early 1980s was that you had a Supreme Court decision, the Boulder case, where the Supreme Court said that when it comes to section 2, where you look at the effects of voting patterns and whether there is discrimination being applied based on race and voting and representation, the test to determine that would be the intent test. Did the people who drew the lines setting up the voting procedures and the voting districts, was it their intent to racially discriminate and undermine African-American voting rights in the States in question. That was the test the Supreme Court applied. Senator Kennedy and others wanted to change that test to the effects test, where you would look at the effects of how the lines were drawn and how the districts were set up. It was an honest debate. The third concept no one has talked much about is proportionality. The Reagan administration was against proportional representation which is basically an electoral quota. You look at a district based on race, and you come to the conclusion that the elected officials within that district have to mirror the population. In other words, you will have a racial quota. If 40 percent of the district is of a particular race, then 40 percent of the people have to be of that race. I don't think most Americans want that. What we want is people to have a chance to run for office, be successful and vote their conscience, without anything interfering and without bad forces standing in the way. I don't think most Americans want to decide the election based on race before you cast any ballot. That was the debate in the 1980s. The Reagan administration was against proportionality. They were standing for the Civil Rights Act as written in the 1960s. Then you had the Supreme Court case that interjected a new concept. What Judge Roberts, then a lawyer in the Reagan administration, was advising was that the current law was the intent test. The Reagan administration was supporting the Supreme Court's intent test. How that has been twisted and turned to show or to make the argument that John Roberts is insensitive to people's ability to vote and has stood in the way of people having their fair day at the ballot box, to me is a complete distortion of who he is and the position he took. At the end of the day, here is what happened. There was a legislative compromise. The Supreme Court intent test was replaced by a totality of the circumstances test which is somewhere between the effects and intent test. I know this is a bit hard to follow, but the bottom line is, there was a compromise legislatively dealing with a Supreme Court decision. John Roberts' legal advice to the Reagan administration was very much in the mainstream of where America is, very much in the mainstream of the Reagan position. To say his legal memos arguing that proportionality was inappropriate and the intent test was based on sound legal reasoning, to somehow go from that legal reasoning to the idea that the man, the person, is insensitive to people's voting rights, again, is quite shameful. He said in the hearing, it is the right of which everything else revolves around, the ability to go to the ballot box and express yourself. This has happened to Judge Pickering, and it is going to happen to the next nominee. I will put the Senate on record from my point of view, coming from the South, there have been plenty of sins where I live in the South. The Voting Rights Act has cured a lot of those sins. But one of the things we should not lay on John Roberts is the idea that because he represented the Reagan administration, arguing that the Supreme Court was right, somehow he, as a person, is insensitive to minority rights. The reason that is a bogus argument is because there is not one person who came before the Senate Judiciary Committee or otherwise to say John Roberts has ever lived his life in a way that would suggest he is insensitive to people's rights based on race. As a matter of fact, one of the witnesses before the committee analyzed the cases Judge Roberts presented to the Supreme Court dealing with civil rights. They found out he won 71 percent of his cases dealing with civil rights issues. That says not only does he understand civil rights law well, he is arguing mainstream concepts. When he looked at how Justices agreed or disagreed with him, apparently Thurgood Marshall agreed with John Roberts, the advocate, over 60 something percent of the time. So if you look at the way he has lived his life, the way he has argued the law and who he has represented, there is not one ounce of evidence to suggest John Roberts the man is in any way insensitive to people's ability to vote based on race. Tomorrow we will come back and we will look at the other reasons to say no to this fine man. I think we are getting into a dicey area, if we are going to play this game of voting no based on ``you won't tell me how you will vote on a particular case'' or that we take someone's legal advice and use the client's position against that person, that you are going to set a standard that will chill out a lot of people wanting to be members of the Court. There are other things being said about this fine man that would be dangerous if the Senate adopted as the test in the future. I will talk next time about how the sitting Justices would not fare so well. The bottom line is there is a reason that Scalia, Ginsberg, and Breyer received well over 90 votes apiece. They were well qualified. They were people of good character and good integrity. If this man, John Roberts, after all that has been said about him in terms of his qualifications, doesn't get 90-plus votes, the Senate needs to do some self-evaluation because we have gone down the wrong road. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. This has been a fascinating legal discussion. May I have a minute or two to answer?

Mr. GRAHAM. Will the Senator yield?

Mr. GRAHAM. I thank the Senator for yielding.

Mr. GRAHAM. The reason I am supporting this bill, from a 30,000-foot view of it rather than getting down into the weeds, is I think this is a defining ``cultural moment'' in the history of our country--when under what circumstances can someone get in your wallet, hold you responsible financially for an event, no matter how unfortunate it might be. Generally speaking, in the law of negligence, the first thing you have to establish in civil liability is a duty. You have to prove that the person being sued had a duty and violated that duty and the violation was the proximate cause and the damages flow from that event. Here is what this bill does not do. It does not let a gun manufacturer off the hook from the duty of producing a reliable and safe gun. If you defectively produce a weapon, you can be held liable. It doesn't let a seller or a distributor off the hook for violating a statute or making a sale illegally because it says, if you violate the law that exists, then you have broken a duty. Duty can be established by relationships. It can be established by a statute. So this bill does not allow someone to sell a gun without following the procedures that we have set out to sell a gun. It doesn't allow someone to make a gun that is unsafe. You are on the hook, and you can be held accountable based on a simple negligence theory or a negligence per se theory, if you violate a specific statute during the sale of a gun or manufacturing of a gun. But what this bill prevents, and I think rightfully so, is establishing a duty along this line: That you have a responsibility, even if you do a lawful transaction or make a safe gun, for an event that you can't control, which is the intentional misuse of a weapon in a criminal fashion by another person. That is the heart of this bill. It doesn't relieve you of duties that the law imposes upon you to safely manufacture and to carefully sell. But we are not going to extend it to a concept where you are responsible, after you have done everything right, for what somebody else may do who bought your product and they did it wrong and it is their fault, not yours. So it does not matter whether you use a gross negligence standard, a simple negligence standard, you have blown by the concept of the bill in my opinion. The debate should be, is there a duty owed in this country for people who follow the law, manufacture safely, sell within the confines of the laws we have written at the State and Federal level to the public at large if an injury results from the criminal act of another? If that ever happens, this country has made a major change in the way we relate to each other and a major change in the law. There are other efforts to make this happen. There is an effort, on the part of some, to hold food manufacturers liable if you choose to buy a lawful product and misuse it by eating too much of it, creating a duty on the part of the people who sell food to manage your own behavior, the behavior of another. Once you leave the store, if you follow this out, they should go home with you and make sure you are doing everything else right. That to me is why this amendment from my good friend from Michigan should not be adopted and why we need to pass this bill. I am all for legal duties where there is a reason for them to exist. Safely manufacture a gun? You better believe it. If you put it in a stream of commerce and it hurts somebody and it is your fault, you will have a day in court. If you sell a gun and you don't do it right and you have it in the wrong hands, then you will have your day in court. The bill even has a negligent provision. If you negligently entrust a weapon to someone you know or should know should not have that gun, you will have your day in court. What we are not going to do, under a gross negligence or simple negligence standard, is create a duty on the part of sellers and manufacturers for an event that they can't control, which is the intentional misuse of a weapon to commit a crime or something akin to that, something that you can't control, nor should you be required to be responsible for the actions of others in that area of life. If we ever hold people who make products accountable for the misdeeds and the mistakes of others when there is no rational relationship or no rational ability to control it, then we have fundamentally changed America. This bill is very important, I say to Senator Craig. We have to pass this bill and stop this kind of legal reasoning because it is going to undermine our country. With that, I yield the floor.

Mr. GRAHAM. I missed it. I think the fact pattern goes along the lines of a criminal goes in with a girlfriend or some other person and tries to purchase a weapon. What responsibility would someone have there? If the dealer or the seller or the person in question had a reasonable opportunity to know a crime was afoot, or this was a sham deal, then I argue the bill would cover it under negligent entrustment. But here is what we would not want to do, in my opinion. You wouldn't want to hold the seller or the distributor liable if he had no reason to understand that a criminal conspiracy by two people he is not responsible for was about to happen. Because that would be unfair. But if he had a reason to know, a reasonable opportunity to know, then that would be a totally different scenario. That is a classic example of what we do not want to do. If a person, about to make a sale, should have known something was afoot to violate the law, they can be held responsible. But if you as a dealer are a victim of a criminal conspiracy you had no part or knowledge of, we are not going to make you responsible. That is the essence of this bill. Because to do so would undo legal concepts that stood 200 years, would put people out of business, and makes no sense. I yield back to Senator Craig.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, it is my understanding that the majority has control of this next hour under the agreement.

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

Mr. GRAHAM. Madam President, I rise to speak in support of S. 397, protecting gun manufacturers from lawsuits that basically would hold the manufacturer liable if someone bought a gun and intentionally committed a crime with it, was irresponsible in its use. I believe everybody should have their day in court for a legitimate grievance. But it is not legitimate, in my opinion, to sue someone who makes a gun lawfully, that is not defective, and that person is held responsible in court because some other person who bought the gun decides to misuse it, to commit a crime with it. That would ruin our economy. It would fundamentally change personal responsibility in America. This bill is a cultural moment in American history. The second amendment gives us a right to bear arms, but it is not unlimited. We have to be responsible. We have to responsibly use that right. The idea that you could sue someone who is lawfully in business because someone else chooses to do something bad will destroy the way America works. It is a ridiculous concept. Suing gun manufacturers for defective products is included in this bill. Everyone should stand behind what they make and put in the stream of commerce. That has not changed. The only thing that has changed is we are cutting off a line of legal reasoning that has extended to fast food now: ``The reason I have health problems is because you served me food that was bad for me.'' The bottom line is, if we go down this road, we are going to make America noncompetitive in the 21st century, and we are going to rewrite the way America works--to our detriment. The rule should be simple. If you make a lawful product and someone chooses to buy it and they decide to misuse it, it is not your fault, it is theirs. You are not going to have your money taken because somebody else messed up. Madam President, $200 million in legal fees have already been incurred by gun manufacturers because of this line of reasoning. You win in America; you still lose. If you want to make sure our country is secure in the future, let's make sure people can manufacture arms in America and we are not dependent on foreign sources for arms for the public or the military. There is a lot at stake here. I enthusiastically support this limitation on what I think would be not only a frivolous lawsuit, but a dangerous concept that will change America for the worse.

Mr. GRAHAM. At this time, I will yield to Senator Cornyn 15 minutes.

Mr. GRAHAM

Mr. GRAHAM. This is absolutely giving clarity. What had been confusing will now be clear, and it will be protection for the troops who are having to administer the detainees, in terms of interrogation. That is what Senator Warner said, in terms of detention. The Marine Corps Judge Advocate, who was part of a review process 2 years ago, said the one thing he thought policymakers were missing, or misunderstood, was the effect on our own troops. Under the Uniform Code of Military Justice, it is a crime to abuse a detainee. So you are creating a new model for interrogation, and you may be getting your own people in trouble if you don't understand how the law exists already. We are trying to reconcile those concepts; let the military tell us what they need and not put our own people at jeopardy. This will help GTMO in two regards: Get better, more reliable information that will not give us a black eye and help the troops understand what their duties are.

Mr. GRAHAM. That is absolutely right. It uses the terms the Senator has just uttered and makes it a statutory prohibition to engage in that conduct. It takes what the President said, we are going to treat people humanely, gets the Congress involved, and we are putting parameters around what we do with foreign terrorists, noncitizens. We can interrogate them, but we are not going to change who we are as a people, and the interrogators tell us that the Army Field Manual--as we were down there a week ago--gives them all the tools they need to aggressively pursue the interrogations. You really don't get things out of torture. They do not believe it is good practice, to begin with, so you are absolutely right. There will be a prohibition in law as well as rhetoric.

Mr. GRAHAM. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. GRAHAM. I ask unanimous consent at this time to set aside the pending amendment and call up amendment No. 1505 and send it to the desk with a modification.

Mr. GRAHAM. Fifteen minutes, and the Senator from Virginia can have 5; yes, sir.

Mr. GRAHAM. It is my understanding that the Army Field Manual, as written--and it is being revised--rejects that concept in interrogation of abusive and degrading behavior. I am not an expert on the terms of it. But the whole point of these amendments also is to make sure that we have standardized interrogation techniques that get good information without having to be abusive and degrading. But you can be forceful. You can be stressful. You can be psychologically and physically stressful under the Army Field Manual without crossing the line that we are all concerned about. That is exactly what we did. We had confusing messages--if I may continue for a second--to our troops. We had a DOJ memo that was a basic departure from the way we have lived as a nation for 60 years. Understandably, after 9/11 we wanted to be aggressive. But the JAGs in question told us: Don't go down this road too far because we have trained people for 60 years to do it one way. It works that way. And you are going to confuse our own troops. Lo and behold, that's exactly what happened. So we are trying to get it back to where we have been. We fought World War II, Hitler--a pretty bad guy--using these concepts. We can fight these terrorists using these concepts. My goal, and I am sure it is your goal, is to kill them if we have to, capture them, interrogate them, detain them and prosecute them and do all that without giving up who we are as a nation. We can do that. This is a step in that direction.

Mr. GRAHAM. It becomes a statute----

Mr. GRAHAM. Less than 10 minutes.