Arlen Specter

Mr. SPECTER

Mr. SPECTER. Madam President, I don't have time to go into it now, with the limited time available, but the reader of the Congressional Record can see how frequently the Court has denied access to even the audio. It is a matter of general knowledge that the Supreme Court Justices engage in television interviews with some frequency. Justice Scalia, for example, appeared on the CBS News program ``60 Minutes'' on April 27 of 2008; Justice Thomas was on ``60 Minutes'' on September 30, 2007; Justices Breyer and Scalia have engaged in several televised debates, including a debate on December 5, 2006. All Justices have sat for television interviews conducted by C-SPAN. A point I have made with some frequency on the floor of the Senate is the great importance of the Supreme Court in our government. The Supreme Court has the final word. There is nothing in the Constitution which gives the Supreme Court the final word, but they took it in the celebrated case of Marbury v. Madison, and I believe it has been for the betterment of the country. You find the inability of the Congress to act. The most noteworthy illustration of that was segregation, for years the practice in this country. The executive branch did not handle it, but the Court was able to integrate our schools in a recognition of the changing values and the flexible interpretation of a living Constitution. It is often said that the Court is not final because they are right, but they are right because they are final. Somebody has to make these final decisions, and I think the Court should do it. But I do believe it is of great value if the people in this country understood what the Court is deciding. Madam President, I ask unanimous consent to have printed in the Record a statement of some 11 cases entitled ``List of Cutting-Edge Decisions of the Roberts' Court.''

Mr. SPECTER. There is insufficient time to go over them now, but most of them are 5-4 decisions. The Supreme Court decides everything from life to death, Roe vs. Wade to the death penalty cases and double jeopardy. These cases involve the integration issue, religious freedom, freedom of speech, collective bargaining, the antitrust laws, and all of the cutting-edge questions are decided. It is my hope that we will find time on the Senate's agenda--with as many quorum calls as we have had we ought to find some time--to take up the issue of televising the Supreme Court. And as we approach next Monday's hearings on Solicitor General Kagan, we will be pursuing these very important issues. In the remaining time available, one other matter which I wish to comment about--and I have sent Solicitor General Kagan three letters setting forth the areas of questioning which I intend to make--is a remarkable, perhaps unprecedented, action by the Supreme Court invalidating the Arizona clean elections law. Arizona set up a law to provide matching funds. The District Court in Arizona declared it unconstitutional, but the Ninth Circuit overturned the district court. The district court had issued an injunction--that is, to prevent the law from being carried out--on matching funds. The Ninth Circuit reversed that. The Supreme Court--in an unusual decision, to put it mildly--earlier this month, on June 8, put the injunction back into effect. This is in the context where there hasn't even been a petition for certiorari filed. The regular practice--the regular order--is a petition for cert, briefs, argument. That is the way cases are decided. But here, in the wake of Citizens United, invalidating a key part of McCain-Feingold, we have the Supreme Court invalidating the Arizona law without even the customary procedures. All of this is in the face of congressional action and action by states to try to respond to public opinion. A recent Hart poll showed that some 95 percent of the American people think that corporations make contributions to exert political influence, and 85 percent of the people feel that corporations ought not to be able to contribute to political campaigns. These are among the questions which we will be considering with the confirmation proceeding on Solicitor General Kagan. I cited at some length her law review article where she is inviting us to do so, committing at least in her law review article in 1995 to provide substantive answers and acknowledging that someone with a thin paper trail, as she has, is under more of an obligation to respond. I note the time has expired. Exhibit 1 C-SPAN Timeline: Cameras in the Court C-SPAN has sought to provide its audience with coverage of the Judiciary, just as it has covered the Legislative and Executive branches of government. The prohibition of televised coverage of the Supreme Court's oral arguments has been an obstacle to fulfilling that goal. Below is a record of C-SPAN's efforts to make the Court more accessible to the public. 1981--C-SPAN televises its first Supreme Court Senate confirmation hearing with gavel-to-gavel coverage, with the nomination of Sandra Day O'Connor. 1985--C-SPAN launches ``America & the Courts,'' a weekly program focusing on the Judiciary with an emphasis on the Supreme Court. 1987--Court permits C-SPAN to originate live Interview and call-in programs from its Press Room. 2/1988--First letter to Chief Justice Rehnquist requesting camera coverage of Supreme Court. 11/1988--Participated in demonstration of potential camera coverage in Supreme Court. 9/1990--C-SPAN airs first live telecast of a federal court proceeding from a military appeals court. 1991--C-SPAN is instrumental in advocating and implementing a 4-year experiment with the Judicial Conference to test television coverage of civil cases before two federal Courts of Appeals and six District Courts. 11/2000--Letter to Chief Justice Rehnquist requesting camera coverage of Bush v. Palm Beach County Canvassing Board. Court agreed to release audio only. 12/2000--Letter to Chief Justice Rehnquist requesting live audio release of Bush v. Gore. Received early audio release, not live. 2003--Sent letter requesting early audio release of Grutter v. Bollinger and Gratz v. Bollinger. (Affirmative action cases) Court agreed. 2003--Requested early audio release of McConnell v. FEC. (Campaign finance rules) Court agreed. 5/2003--Justice O'Connor participates in C-SPAN's ``Student and Leaders'' with students at Gonzaga College High School in Washington, DC. 5/2003--Justice Thomas participates in C-SPAN's ``Student and Leaders'' with students at Banneker High School. 2004--Requested early audio release in the following cases. Rasul v. Bush and Al Oday v. United States; Cheney v. U.S. District Court; Hamdi v. Rumsfeld; Rumsfeld v. Padilla. Court agreed. 2004--Requested early audio release of Roper v. Simmons. (Execution of juveniles) Denied. 2005--Requested early audio release of Van Orden v. Perry and McCreary County v. ACLU of Kentucky. (Separation of church and state) Denied. 1/2005--Senator Arlen Specter (R-PA) introduces legislation to televise the Supreme Court Statement. Read 4/2005--C-SPAN airs live a ``Constitutional Conversation'' moderated by Tim Russert with Justices Breyer, O'Connor and Scalia. They discuss the role and operation of the Court, among other subjects. Watch 10/2005--First letter to Chief Justice Roberts offering C- SPAN capabilities to provide gavel-to-gavel camera coverage of Supreme Court. 11/2005--Requested early audio release of: Ayotte v. Planned Parenthood of Northern New England (abortion) and Rumsfeid v. Forum for Academic and Institutional Rights (``don't ask, don't tell'' policy). Agreed. 11/2005--C-SPAN CEO Brian Lamb testifies before the Senate Judiciary Committee hearing on the issue of cameras in the Supreme Court. Watch/Read 11/2005--U.S. House passes provisions of Sunshine in the Courtroom Act Statement. Read 2006--Requested audio release of tape of the investiture of Justice Alito. Denied. 2006--Requested early audio release of voting rights act cases. League of United Latin v. Perry; Travis County, Texas v. Perry; Jackson v. Perry; GI Forum v. Perry. Denied. 3/2006--Requested early audio release of Hamdan v. Rumsfeld. (Military Tribunals) Court agreed. Press Release 3/2006--Sens. Grassley (R-IA) and Schumer (D-NY) introduced Sunshine in the Courtroom Act. Press Release 6/2006--Letter to Chief Justice Roberts requesting simultaneous release of all oral arguments beginning with 2006 term. Denied. 8/2006--C-SPAN's Brian Lamb interviews Chief Justice John Roberts in one of his first television interviews since joining the court. Transcript/Watch 10/2006--Requested early audio release of Gonzalez v. Planned Parenthood and Gonzalez v. Carhart (abortion). Court agreed. Press Release 10/2006--C-SPAN airs live a discussion between Justice Scalia and Nadine Strossen, President of the ACLU, called `` The State of Civil Liberties.'' Watch 11/2006--Sent letter requesting early audio release of Parents Involved v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education (affirmative action). Court agreed. 11/2006--Requested early audio release of oral arguments in Parents Involved v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education (Affirmative action) Court agreed. Press Release 1/2007--Sent letter requesting early audio release of Davenport v. Washington Education Association and Washington v. Washington Education Association (Union dues). Denied. 1/2007--Introduction of the Sunshine in the Courtroom Act of 2007 in the 110th Congress, co-sponsored by Sens. Grassley (R-IA), Leahy (D-VT) and Schumer (D-NY). 1/2007--Sen. Arlen Specter (R-PA) introduces cameras in the Supreme Court legislation. Watch 2/2007--Sent letter requesting early audio release of Rita v. United States and Claiborne v. United States (Federal sentencing guidelines). Denied 2/2007--Rep. Ted Poe (D-TX/2nd), a former judge, delivers a floor speech about opening the court to cameras. Watch 2/2007--Sens. Specter and Cornyn discuss cameras in the courts with Justice Anthony Kennedy during Judiciary Committee hearing. Sen. Specter questions Justice Kennedy directly. Watch/Sen. Cornyn remarks on his experience with cameras. Watch/Watch Hearing 3/2007--Justices Kennedy and Thomas comment on cameras in the court before a House Appropriations Subcommittee hearing on the FY08 Supreme Court budget. Watch Justice Kennedy/Watch Justice Thomas 3/2007--Sent letter requesting early audio release of FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life (Campaign Finance). Denied. 3/7/2007--Sent letter requesting camera coverage of 3rd circuit CBS vs. FCC hearing on Television Indecency Standards. Received permission for audio only. 8/16/2007--Aired camera footage of Ninth Circuit Court of Appeals 8/15/07 oral argument in two cases on the government's warrantless wiretapping program. Al-Haramain Islamic Foundation, Inc. v. Bush Hepting v. AT&T 9/11/2007--Aired same-day audio of CBS vs. FCC hearing on Television Indecency Standards. 9/27/2007--C-SPAN President Susan Swain testifies before House Judiciary Committee on H.R. 2128, Sunshine in the Courtroom Act of 2007. Watch/Read Testimony 9/2007--Sent letter requesting early audio release of Medellin v. Texas (Presidential Powers) and Stoneridge Investment v. Scientific-Atlanta (Securities Fraud). Denied. 10/2007--Sent letter requesting early audio release of Boumediene v. Bush & Al Odah v. U.S. (Guantanamo Detainees) Court Agreed. Press Release 11/16/2007--9th Circuit Court of Appeals opinion in Al- Haramain Islamic Foundation v. Bush cites C-SPAN'S request to record oral argument and date footage was televised. See footnote 5, page 14969. 12/06/2007--Senate Judiciary Committee votes in favor of sending S. 344 to the full Senate for a vote. The bill would require television coverage of the Supreme Court's open sessions unless a majority of justices vote to block cameras for a particular case. 1/2008--Request for same-day audio release of oral argument in Baze v. Rees (Lethal Injection). Court agreed. Press Release 1/02/2008--Request for same-day audio release of oral argument in Crawford v. Marion County (Voting Rights). Denied. 1/16/2008--NY Times Editorial on Cameras in the Supreme Court. 3/2008--Request denied for same-day audio release of oral argument in United States v. Ressam (``Millenium Bomber'' case). 3/2008--Request granted for same-day audio release of oral argument in District of Columbia v. Heller (DC Gun Law). Press Release 3/6/2008--The Senate Judiciary Committee passes the ``Sunshine in the Courtroom Act'' which allows cameras in federal court rooms with a vote of 10-8 with one member abstaining. The bill is referred to the full senate for consideration. Press Release 3/21/2008--Rochester Democrat and Chronicle Editorial on allowing cameras in the Supreme Court. 4/14/08--Request for same-day audio release of oral argument in Kennedy V. Louisiana (Death Penalty for Rape) denied. 9/26/2008--Request for same-day audio release of oral argument in Altria Group, Inc. v. Good (Marketing of ``Light'' Cigarettes) and Winter v. Natural Resources denied. Request Letter 10/15/2008--Request for same-day audio release of oral argument in FCC v. Fox Television Stations (Television Indecency Standards) denied. Request Letter Story 11/12/2008--Request for audio release of oral argument in Pleasant Grove City v. Summum (Free Speech) denied. 12/3/2008--Request for audio release of oral argument in Phillip Morris USA Inc. v. Williams (Supreme Court-State Court authority) denied. 12/10/2008--Request for same-day audio release of oral argument in Ashcroft v. Iqbal (Can President's Cabinet be sued for constitutional violations by subordinates) denied. 3/3/2009--Request for audio release of oral argument in Caperton v. A.T. Massey (Should elected state judges recuse themselves) denied. 3/27/2009--Joint request for same-day audio release of oral argument in Northwest Austin Municipal Utility District Number One v. Holder 4-291 granted. Request Letter Article 7/2009--Judge Sotomayor questioned about cameras in the court during her confirmation hearings. Sen. Specter on Opinion Poll Sen. Specter on Cameras in the Court Sen. Kohl on Cameras in the Court 7/2009--British Supreme Court decides to televise events from inside the court's three chambers. Article 8/7/2009--Boston Herald op-ed by Wayne Woodlief: ``Televised justice would be for all.'' Article 9/9/2009--Request for Citizens United v. Federal Election Commission (Campaign Finance). Agreed. 11/2009--Requests for audio releases of oral arguments in Jones v. Harris Associates (Investment fund fees), Graham v. Florida (life sentence for minor), and Sullivan v. Florida (life sentence for minor). Denied. 2/16/10--Request for request for same-day audio release of oral argument in Holder v Humanitarian Law Project. Denied. 2/26/10--C-SPAN requests for same-day audio release of oral arguments in Skilling v. United States and McDonald v. City of Chicago on Tuesday, March 2nd--denied. 4/7/10--C-SPAN requests same-day audio release of oral argument in Christian Legal Society Chapter v. Martinez on April 19. Denied. 4/15/10--During hearing of House Appropriations- Subcommittee on Financial Services and General Services, Supreme Court Justice Stephen Breyer comments on cameras in the court. Click here to watch 4/29/10--C-SPAN statement on today's Senate Judiciary Committee passage of two bills concerning TV cameras in the Supreme Court. Press Release 5/10/10--Pres. Obama nominates U.S. Solicitor General Elena Kagan. She gave remarks on cameras in the court during a Ninth Circuit Judicial Conference from July, 23, 2009. Click here to watch

Mr. SPECTER

Mr. SPECTER. Mr. President, a good bit of the substance of the questions which I have been directing toward Solicitor General Kagan involves the question as to whether she would have voted to grant cert. I believe that is an appropriate question, whether she would agree that a case ought to be heard. There is a view that questions ought not to be asked as to what a nominee would do once a case is pending before the Court. I think even that doctrine has some limitations. I think cases such as Brown v. Board of Education, cases such as McCulloch v. Maryland, cases which are well established in the law of the land, ought to be the subject for commitment. But I think there is no doubt--in my opinion, there is no doubt--we should ask her whether she would take a case such as the Terrorist Surveillance Program, or a case such as the litigation involving the claims brought by the survivors of victims of 9/11. The hearings next week on Solicitor General Kagan will give us an opportunity to move deeply into a great many of these important subjects. While it is true that in many instances we do not get a great deal of information from the nominees, I think the hearings are very important to inform the public as to what goes on with the Court. This is in line with the efforts which I have made to provide for legislation which would call for televising the Supreme Court. The Judiciary Committee has twice passed out of committee, by significant votes--once 12 to 6 and once 13 to 6--legislation which would call for the Supreme Court to be televised. The Congress of the United States has the authority to make directives on administrative matters--things such as how many Justices constitute a quorum, when they begin their term, how many members there are of the Supreme Court. Congress has the authority to mandate what cases the Supreme Court will hear, and--in the cases which I intend to ask Solicitor General Kagan, such as the terrorist surveillance program--whether she would have granted cert. There are underlying concerns, which I have raised today, of a certain disrespect which characterizes a good many of the Supreme Court opinions. For example, the opinion by Chief Justice Rehnquist in striking down the legislation protecting women against violence, notwithstanding a very voluminous record--a radical change in the interpretation of the Commerce Clause--where the Court, through Chief Justice Rehnquist, said that the Court disagreed with Congress's ``method of reasoning.'' It is a little hard to understand how the method of reasoning is so much improved when you move across the green from the Judiciary Committee hearing room past confirmation; or where you have the language used by Justice Scalia--and I have quoted some of it earlier-- in the case of Tennessee v. Lane, where Justice Scalia had objected to the congruence and proportionality standard, which he said was a flabby test and a standing invitation to traditional arbitrariness and policy decisionmaking. Then he went on to criticize his colleagues for, as Justice Scalia said, inappropriate criticism of an equal branch. This is what he had to say about the proportionality and congruent standard .Worse still, it casts this court in the role of Congress's taskmaster. Under it, the courts--and ultimately this Court-- must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill-advised to adopt or adhere to constitutional rules that bring us into constant conflict with the coequal branch of government. And when such conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test of congruence and proportionality that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed. So that is fairly strong language in disagreeing with what the Court has done in establishing the test. And Justice Stevens minced no words in his criticism of Citizens United in saying that the decision by the Supreme Court showed a disrespect for Congress. There the Court, in Citizens United, overruled both McConnell v. Federal Elections Commission and the Austin case. Overruling Austin was very significant, Justice Stevens noted, because Congress specifically relied on that decision in drafting McCain-Feingold. Justice Stevens then said that pulling out the rug beneath Congress in this matter ``shows great disrespect for a coequal branch.'' Well, my colleagues, the Congress has an opportunity to assert itself, to demand the appropriate respect which the Constitution calls for and has been implemented under the doctrine of separation of powers. We can find ways to make sure that commitments about respected congressional fact-finding will be observed, or that the rule of stare decisis will be respected; that when there are major decisions coming before the Supreme Court of the United States which involve the power of Congress vis-a-vis the executive branch, that those decisions will be made. So let's sharpen our lines of questioning, colleagues, as we move forward to the hearings on Solicitor General Kagan a week from today. I thank the Chair, and I yield the floor. I had noticed my colleague standing there. I hope I haven't kept him waiting too long.

Mr. SPECTER. I thank the Chair.

Mr. SPECTER. Mr. President, I have sought recognition to again alert my colleagues to what I consider to be a very important matter, and that is that the Supreme Court of the United States is materially changing the traditional separation of powers and that, as a result, the Congress of the United States continues to lose very substantial power in the Federal scheme under the Constitution of the United States. This is a theme I have submitted over the course of the last 30 years, since 1981, with the confirmation proceedings of Justice Sandra Day O'Connor. And in now the 12th proceeding that I will personally have participated in, I raise this issue again to urge my colleagues to take a stand. The only opportunity we have to influence the process is through the confirmation of Supreme Court Justices. But we have witnessed a series of cases where instead of the traditional doctrine of separation of power, there has been a very material concentration of power which has gone principally through the Court and secondarily to the executive branch. The Framers put the Congress under Article I. It was thought at the time the Constitution was adopted that Congress would be the foremost branch representing the people. The executive branch is Article II, and the judiciary branch is Article III. Were the Constitution to be written today, I think we would find the course inverted. But what we have seen here is that recent decisions of the Supreme Court have abrogated the traditional deference given by the judicial branch to findings of fact and the determination of public policy arising from what Congress finds in its extensive legislative hearings, with the Court substituting its judgment with a variety of judicial doctrines. During the confirmation process where we examine the nominees, we continue to receive lip service about congressional authority but, once confirmed, we find that the nominees have a very different attitude and engage in very substantial jolts to the constitutional law in effect. The generalized standard for what would be the basis for upholding an act of Congress was articulated by Justice Harlan in Maryland v. Wirtz in 1968 interpreting the commerce clause, saying: Where we find that the legislation as a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. That is the general legislative standard which had been adopted by the Court in reviewing acts of Congress until the case of City of Boerne v. Flores in 1997. There, the Supreme Court adopted a new standard. They articulated it as congruence and proportionality, with the Supreme Court of the United States reviewing the act of Congress to decide whether it was congruent and proportional to what the Congress sought to achieve, and that entailed an analysis of the record, giving very little deference to what Congress had found. On its face, the standard of congruence and proportionality suggests that the Court can come out anywhere it chooses. That was the view of a very strong dissent by Justice Scalia in a subsequent case, where he said: The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. So that when you take a standard of that sort and undercut the traditional deference to congressional fact-finding, you end up with the Court making law instead of interpreting law. Under that decision, we have seen a whole torrent of Supreme Court decisions declaring acts of Congress unconstitutional. Illustrative are the Morrison case, involving the Violence Against Women Act, the Garrett case under the Americans With Disabilities Act, and repeatedly the issue was undercut. As a result, in the confirmation hearings, many of us--this Senator included--sought to establish an understanding of a nominee's approach to giving the deference to congressional findings. Illustratively--and I have spoken on this subject before--Chief Justice Roberts and Justice Alito used all the right language, but when we find the application of the language, they have done a reverse course. Justice Roberts spoke eloquently about the need for modesty and for the Court not to jolt the system, but to follow stare decisis. With respect to fact-finding, this is what Chief Justice Roberts had to say in his confirmation hearing: I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record. . . . [A]s a judge, you may be beginning to transgress into the area of making a law . . . when you are in a position of re- evaluating legislative findings, because that doesn't look like a judicial function. So there you have a very flat statement by the nominee saying that it is not the Court's role to transgress into the area of lawmaking, which is what does happen in reevaluating legislative findings. Justice Alito said about the same thing. This is his testimony in his confirmation hearing: I think that the judiciary should have great respect for findings of fact that are made by Congress. The judiciary is not equipped at all to make findings about what is going on in the real world--not these sort of legislative findings. And Congress, of course, is in the best position to do that. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that, and reduce that to findings. And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect. The decision in Citizens United found the Court reversing recent decisions in the Austin and McConnell cases. Instead of giving the deference to the congressional findings, which was articulated by Chief Justice Roberts and Justice Alito, they did an about-face. In raising this consideration, I do not challenge the good faith of Chief Justice Roberts or Justice Alito. I recognize and acknowledge the difference between testifying in a confirmation hearing and what happens during the course of a decision when deciding a specific case in controversy. But when we take a look at what happened in Citizens United--and again, this is a matter of the illustration--we have the enormous record that was created by the Congress in enacting McCain- Feingold and the findings of fact there to support what the Congress did, which was invalidated by the Supreme Court of the United States in Citizens United, which upset 100 years of precedent in allowing corporations to engage in political advertising. The scope and detail of the congressional findings were outlined by Justice Stevens in his dissenting opinion in Citizens United. The statement of facts by Justice Stevens on commenting on the record is not a matter of disagreeing on opinions. People are entitled to their own opinions but not to their own facts, as has been reiterated so frequently. This is what Justice Stevens noted on the congressional fact-finding: Congress crafted in the McCain-Feingold legislation ``in response to a virtual mountain of research on the corruption that previous legislation failed to avert.'' The Court now negates Congress's efforts without a shred of evidence on how section 203 or its State law counterparts have been affecting any entity other than Citizens United. Justice Stevens said this to emphasize not only that the Court's holding ran counter to outstanding congressional judgment but also ``the common sense of the American people,'' who have recognized a need to prevent corruption from undermining self governing since the founding and who have fought against the distinctive corrupting potential of corrupt electioneering since the days of Theodore Roosevelt. Justice Stevens went on to point out that the record compiled in the context of the congressional legislation was more than 100,000 pages long. He noted that judicial deference is particularly warranted, whereas here we deal with the congressional judgment that has remained essentially unchanged throughout a century of legislative adjustment. Now, as a result of what happened in Citizens United, we found that, illustratively, Chief Justice Roberts did substantially differently when on the Court in contrast with what he did in his confirmation hearing. In the confirmation hearing, Chief Justice Roberts did acknowledge that the act was a product of an ``extraordinarily extensive legislative record.'' ``My reading of the Court's opinion,'' Chief Justice Roberts went on, ``is that was the case where the Court's decision was driven in large part by the record that had been compiled by Congress. The determination there was based on the extensive record carrying a lot of weight with the justices.'' The matter was particularly problemsome. As Justice Stevens noted: The Congress relied upon the decision of the Supreme Court in the Austin case. Stevens noted that overruling Austin was especially significant because Congress had specifically relied on that decision in drafting the McCain-Feingold Act. So essentially what you have here is relatively recent decisions by the Supreme Court of the United States in Austin and McConnell. You have a very extensive congressional record, which sets forth the factors about the need to avoid corrupt practices and electioneering brought about by money and, beyond the actual corrupt practices, the appearance of corruption, and the legislative effort to set this kind of a factual basis. And you have Justices in confirmation hearings committing to respecting and being deferential to congressional findings. But when the decision comes, 100 years of precedent is overturned. You don't have a modest decision; you have a decision which jolts the system. It is a difficult matter where we proceed candidly as to where we go beyond getting the most positive assurances we can from the nominees. I suggest to my colleagues that when we begin the confirmation process with Solicitor General Kagan next week, this should be a focus of attention because what is happening is that the power of Congress is being diluted. If you have legislative findings that go for 100,000 pages and then you have Justices who have under oath said that they will give deference to congressional findings; you have Congress enacting the McCain-Feingold law based upon the standards set by the Supreme Court of the United States in the Austin case; you have the relatively recent precedents of Austin and McConnell, for instance, the Federal Election Commission; and then you have a case like Citizens United coming down, that ought to be a sharp focus of attention. My sense is that the reality is that this body and our counterpart across the Rotunda pay relatively little attention to what the Supreme Court of the United States does. They have the final say. It is often noted that they are right only because they are final. When we have an opportunity, through the confirmation process, to focus on these issues, I suggest to my colleagues that it is high time we do so. There is a second area where the authority of Congress has been very materially undermined. It has been where the Supreme Court of the United States declines to decide cases. We have a situation where the Court hears and decides relatively few cases. This is against the backdrop where, historically, the Supreme Court of the United States decided many more cases. Going back to 1886, the Supreme Court of the United States had on its docket 1,396 cases and decided 451 cases. In 1987, the Supreme Court issued 146 majority opinions. In 2006, less than 20 years later, the Supreme Court heard arguments in only 78 cases and handed down opinions in only 68 cases. A year later, 2007, the Supreme Court heard arguments in 75 cases and handed down opinions in only 67 cases. In 2008, arguments in 78 cases, decisions in 65 cases. This is in a context where Chief Justice Roberts testified in his confirmation hearing that he thought the Court ought to hear more cases. In a letter I will submit for the Record, there is a detailing of the tremendous number of important circuit splits where the Supreme Court of the United States does not decide which circuit is correct or you have one circuit deciding a case one way or another circuit deciding a case another way, and then the situation arises in yet a third circuit, and there is no guiding precedent. There is confusion, and I suggest that the Court really has the duty to take up these circuit splits and make a definitive decision so that the law is clarified, so that litigants and lawyers can know where the law stands on a specific case. Stated simply and directly, the Court is not too busy to take up these circuit splits. There are other major cases where the Court declines to hear cases, which I respectfully submit that the Court ought to hear. Illustrative of one of the major constitutional conflicts in the history of the United States has been the controversy over warrantless wiretaps. You have the Foreign Intelligence Surveillance Act of 1978, which in very emphatic terms says the exclusive way a wiretap may be obtained would be through a warrant, where the Federal investigative authorities filed an affidavit of probable cause with a Federal judge or a Federal magistrate, and only after that permission is granted may the wiretap be activated. That is to protect the very basis of privacy and the very strong interdiction of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure. It has been 5 years since it was disclosed that the executive branch, under the so-called Terrorist Surveillance Program, was undertaking warrantless wiretapping. The activity was being undertaken under the contention that the President had power as Commander-in-Chief, executive authority under Article II to disregard the act of Congress. It is standard hornbook law. The Congress cannot legislate in violation of the Constitution. But if, in fact, the President of the United States, under certain circumstances, has the authority as Commander-in-Chief to engage in conduct, Congress may not proscribe it, may not eliminate it, may not limit the power of the President that the President has under constitutional authority. But 5 years have passed and there has been no decision in the case. A Federal district court judge in Detroit declared the act unconstitutional. The case was appealed to the Court of Appeals for the Sixth Circuit, and in a 2-to-1 decision the court decided that there was no standing, which is a popular doctrine for declining to hear a case and ducking the issue. I believe any fair analysis of the opinion of the court of the dissenting opinion gave much additional weight to the dissenters or, in any event, a very close question, one of paramount importance that ought to have been decided by the Sixth Circuit. The case was then taken to the Supreme Court of the United States, which denied certiorari. Those issues are still very much in play. In a case in the U.S. district court in San Francisco, Judge Vaughn Walker has declared the act unconstitutional. It is questionable whether that is a final ruling in the case. But the Supreme Court of the United States, with as many law clerks as they have--four and five each; many more than they have had in earlier days--and with the very light docket they have, there is no reason that a case such as the Terrorist Surveillance Program should not be adjudicated by the Supreme Court so we would know what the law was on that subject. Another case which I have spoken about on the floor of the Senate involves the litigation brought by survivors of the September 11 attacks on the United States where some 3,000 people were killed. A lawsuit was begun to get damages from the Government of Saudi Arabia, from five Saudi princes, from a Saudi charitable organization which was an instrumentality of the government, and other defendants. The Congress of the United States in the sovereign immunity law specifically decided that the sovereign should not have immunity in any case where there was a domestic tort involved, such as the conduct involved in 9/11. The Court of Appeals for the Second Circuit decided the legislation did not apply because it applied only in situations where a nation had been declared a terrorist state. That exception is nowhere in the statute. It had no place in the decision. When application was made for certiorari to have the case considered by the Supreme Court, the Solicitor General's Office, headed by Solicitor General Kagan, took the position that the Second Circuit was wrong but urged the Court not to take the case on the ground that there were important foreign policy questions involved. Solicitor General Kagan took the position that where no acts occurred within the United States, the Foreign Sovereign Immunities Act did not apply. Again, this reading was pulled literally out of thin air. Nothing in legislative history or background would suggest that the victims of 9/11 ought not have a case against the Government of Saudi Arabia and the princes and the charitable organization, an instrumentality of the state. Under those circumstances, no distinction between the acts occurred, but there was plenty of repercussion and plenty of consequence from that tortious conduct when America was attacked. Here the Supreme Court of the United States has denied to hear the case, which leaves the Congress subservient to the executive branch. The business about being deferential to foreign powers, in my judgment, is not an adequate basis for disregarding the legitimate claims of the people who were killed on 9/11, not sufficient to disregard the congressional enactment which held that there ought not to be sovereign immunity where there is tortious conduct involved; that the doctrine of sovereign immunity ought to apply to commercial transactions but not to conduct such as was evidenced on 9/11. Again, we have as an adjunct of what happens when the Court disregards congressional findings. You have the action of the Court in declining to hear cases such as the Terrorist Surveillance Program, such as the litigation brought by the survivors of the victims of 9/11 where the authority of Congress is materially undercut. There has been other action taken by the Supreme Court of the United States. It is hard to pick the description which is sufficiently forceful, whether it is surprising or whether it is astounding. But litigation was brought in a case captioned McComish v. Bennett where the district court in Arizona held that Arizona's Citizens Clean Elections Act was unconstitutional. In that case, the State of Arizona had decided to provide for matching funds in order to deal with the problems of campaign financing, trying to deal with the issues of corrupting influence of money, both the fact of corruption and the appearance of corruption. I am not going to take the time now to go through the long list of cases where Members of Congress have been convicted of illegal campaign contributions which rose to the level of being a quid pro quo and a bribe. But the Federal district court in Arizona said the Arizona legislation, captioned the Citizens Clean Elections Act, was not supported by a compelling State interest, not narrowly tailored, and not the least restrictive alternative and, therefore, was unconstitutional under the First Amendment. The Court of Appeals for the Ninth Circuit reversed saying there was an ample record to support the legislative enactment. On June 1 of this year, 20 days ago, the Supreme Court of the United States denied an application to vacate the stay. The Court of Appeals for the Ninth Circuit had stayed the decision of the district court so that the Arizona elections could go forward pursuant to the Arizona Citizens Clean Elections Act. When the Ninth Circuit heard the case, the Ninth Circuit issued a stay that stopped the carrying out of the district court decision on unconstitutionality so that the elections in Arizona this year could proceed under that act. The losing parties in the Ninth Circuit decision then applied to the Supreme Court to eliminate the stay so the district court opinion would remain in effect. The Supreme Court, on June 1, denied the application to vacate the stay ``without prejudice to a renewed application if the parties represent that they intend to file a timely petition for a writ of certiorari.'' A week later, the Court reversed course and granted the application to vacate the stay on the district court's injunction ``pending filing and disposition of a petition for writ of certiorari.'' This is complex legalese, but what it does is reinstate the conclusion of the Federal district court in Arizona that the Arizona law is unconstitutional and may not be enforced. It is a little hard to fathom how the Court can do that without even the filing of a petition for a writ of certiorari. What we essentially have is the Supreme Court was deciding the Arizona case without the submission of a petition for a writ of certiorari, without following the rules of the Supreme Court for the filing of briefs, or without an argument before a decision was made. It has all the earmarks of a flagrant denial of due process of law. It is true technically that the Supreme Court may reverse and remand and enter judgment as they choose. But in a contest where the procedures are established, in case after case the practice of the Court--you want to have the Supreme Court of the United States review a case? File a petition for writ of certiorari. Then you have to prepare a brief, then you appear before the Court for argument, and then the Court makes a determination, after hearing the case, what ought to be done. Here we have the Arizona elections disrupted by a conclusion of the Supreme Court of the United States. It is not even a judgment. It is a reinstatement of a stay. We have the Supreme Court of the United States today on issues of enormous importance--the election of Federal, State, and local officials, an Arizona law trying to deal in a sensible way with the problems of having candidates spend so much of their time on electioneering. A recent study showed those of us in Congress spent about 25 percent of our time on raising money. I think that is a fairly realistic estimate. I think I saw an affirmative nod from the Presiding Officer, the Senator from Virginia. I would say that is not much off the mark from my own experiences. My first campaign cost less than $2 million, and the last campaign cost some $23 million. We all have offices away from our office so we comply with the law which prohibits us from making telephone calls to raise money or undertaking any of it on Federal property. It takes a lot of time. We have a number of former Members of Congress who are in jail today across this land, and we have a lot of public skepticism about the influence of money on congressional decisions. We had eight Members of the House of Representatives in one of the Hill newspapers last week about an investigation of a House Ethics Committee where there was an appearance of some issue where votes were changed in the wake of campaign contributions. Here we have the Supreme Court eliminating the Arizona law without even having a hearing in the case but reinstating the stay. That is a subject I intend to ask Nominee Kagan about next week. I have submitted a series of letters to Solicitor General Kagan, one dated May 25, one dated June 15, and I am sending another one today, and I ask unanimous consent to have printed in the Record the full text of these letters.

Mr. SPECTER

Mr. SPECTER. Madam President, I voted against the Vitter amendment on the Oil Spill Liability Trust Fund to H.R. 4213, the Tax Extenders Act, because no matter what the size of the trust fund, the party responsible for an oil spill must pay all costs of its cleanup, and is also responsible for economic damages caused by the spill. This amendment will not reduce in any way the available resources for combating the spill in the gulf, or any other future spill. The moneys in the Oil Spill Liability Trust Fund may be used to advance cleanup costs but that does not relieve British Petroleum as the primarily liable party for paying the full costs of the gulf spill cleanup which will reimburse the trust fund for any funds expended. Amendment No. 4311

Mr. SPECTER. Madam President, I voted for the Sanders amendment on tax incentives for oil and natural gas production to H.R. 4213, the Tax Extenders Act. Pennsylvania is in the midst of a historic boom in natural gas production from the Marcellus Shale formation. This industry is on track to create hundreds of thousands of jobs in the Commonwealth, and billions of dollars in revenue, both of which are badly needed in my home State. But the development of one natural resource must proceed with the utmost care for two others: water and land. I know that the natural gas industry desires to maintain the tax incentives which would be removed by the Sanders amendment. President Obama has also proposed removing these tax incentives in his fiscal year 2011 budget proposal. However, I cannot support further incentives for natural gas until that industry agrees to full public disclosure of the chemical composition of its hydraulic fracturing fluids, which are used to break apart the shale deep underground and initiate the gas flow. There is placeholder language to this effect in the discussion draft of the Kerry-Lieberman American Power Act, and I hope that natural gas companies large and small will support these provisions as the bill, or another energy bill, moves forward into law. There are many issues that the natural gas industry must cooperate with the Commonwealth of Pennsylvania on, including hydraulic fracturing disclosure, wastewater recycling, responsible well development, and a severance tax. My support for incentives for natural gas will remain contingent on that industry demonstrating its commitment to developing the Marcellus Shale in a manner that all Pennsylvanians will look back on, generations from now, with pride.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce The Gynecological Cancer Education and Awareness Act of 2010 also known as Johanna's Law. Every year, over 80,000 women in the United States are newly diagnosed with some form of gynecologic cancer such as ovarian, uterine, or cervical cancer. In 2009, 28,000 American women are estimated to have died from these cancers. Early detection of these cancers must be improved to decrease this tragic loss of life. Unfortunately, thousands of women in the U.S. each year aren't diagnosed until their cancers have progressed to more advanced and far less treatable stages. In the case of ovarian cancer, which kills more women in the U.S. than all other gynecologic cancers combined, more than 40 percent of all new diagnoses take place after this cancer has progressed beyond its earliest and most survivable stage. Women are often diagnosed many months, sometimes more than a year after they first experience symptoms due to a lack of knowledge of early warning signs of gynecological cancers. Adding to the challenge of a prompt and accurate diagnosis is the similarity of gynecological cancer symptoms to those of more common gastrointestinal conditions and benign gynecologic conditions such as perimenopause and menopause. Women too often receive diagnoses reflecting these benign conditions without their physicians having first considered gynecologic cancers as a possible cause of the symptoms. The Gynecological Cancer Education and Awareness Act has improved early detection of gynecologic cancers by creating a national awareness and an education outreach campaign to inform physicians and individuals of the risk factors and symptoms of these diseases. When gynecological cancer is detected in its earliest stage, patients 5-year survival rates are greater than 90 percent and many go on to live normal, healthy lives. The national awareness campaign has been carried out by the Department of Health and Human Services, HHS, to increase women's awareness and knowledge of gynecologic cancers. The campaign has maintained and distributed a supply of written materials that provide information to the public about gynecologic cancers. Further, the program has developed public service announcements encouraging women to discuss their risks for gynecologic cancers with their physicians, and inform the public about the availability of written materials and how to obtain them. The cost of continuing this awareness campaign is $5.5 million per year from 2010-2012, totaling $16.5 million. The educational outreach campaign will be carried out through demonstration grants through HHS. These demonstration grants will go to local and national non-profits to test different outreach and education strategies, including those directed at providers, women, and their families. Groups with demonstrated expertise in gynecologic cancer education, treatment, or in working with groups of women who are at especially high risk will be given priority. Grant funding recipients will also be asked to work in cooperation with health providers, hospitals, and state health departments. The projected cost of the educational outreach campaign is $5 million per year from 2010-2012, totaling $15 million. This legislation was brought to my attention by my friend Fran Drescher, who was diagnosed with uterine cancer in 2000 and whose diagnosis was also delayed due to her lack of knowledge about symptoms of this disease. She has recovered from uterine cancer and is advocating on behalf of gynecological cancer awareness. She also brought to my attention one of the many victims of gynecological cancers, Johanna Silver Gordon, after whom this bill is named, who was diagnosed at an advanced stage of ovarian cancer. Johanna, the daughter and sister of physicians, was extremely health conscious taking the appropriate measures to maintain a healthy lifestyle including exercising regularly, eating nutritiously, and receiving annual pap smears and pelvic exams. Johanna however did not have the information to know that the gastric symptoms she experienced in the fall of 1996 were common symptoms of ovarian cancer. She didn't learn these crucial facts until after she was diagnosed at an advanced stage of this cancer. Despite aggressive treatment that included four surgeries, various types of chemotherapy, and participation in two clinical trials, Johanna died from ovarian cancer 3 1/2 years after being diagnosed. Johanna is survived by her sister Sheryl Silver who has tirelessly worked to increase the information available regarding gynecological cancers. As former Chairman and Ranking Member of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I led, along with Senator Harkin, the effort to double funding for the National Institutes of Health, NIH, over 5 years. Funding for the NIH has increased from $12 billion in fiscal year 1995 to $27 billion in fiscal year 2003. In 2004, the NIH, through the National Cancer Institute provided $243 million for gynecological cancer research. We must continue this growth to gain more information about gynecological cancers so that we can find a cure for this cancer. I believe this bill can provide desperately needed information to physicians and individuals so that women can be diagnosed faster and more effectively. I urge my colleagues to move this legislation forward promptly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent to speak for up to 45 minutes.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on the way in which the Senate discharges its constitutionally assigned responsibility to consent to the appointment of Justices to the Supreme Court of the United States. With almost 30 years of experience, my thinking on this subject has evolved and changed. At the outset, I thought the President was entitled to considerable deference, providing the nominee was academically and professionally well qualified, under the principle that elections have consequences. With the composition of the Supreme Court a Presidential campaign issue, it has become acceptable for the President to make ideological selections. As the Supreme Court has become more and more of an ideological battleground, I have concluded that Senators, under the doctrine of separation of power, have equal standing to consider ideology. For the most part, notwithstanding considerable efforts by Senators, the confirmation process has been sterile. Except for Judge Bork, whose extensive paper trail gave him little choice, nominees have danced a carefully orchestrated minuet, saying virtually nothing about ideology. As I have noted in the past, nominees say only as much as they think they have to in order to be confirmed. When some nominees have given assurances about a generalized methodology, illustrated by Chief Justice Roberts and Justice Alito, their decisions have been markedly different. In commenting on those Justices, or citing critical professorial evaluations of their deviations, I do not do so to challenge their good faith. There is an obvious difference between testimony before the Judiciary Committee and deciding a case in controversy. But it is instructive to analyze nominees' answers for Senators to try to figure out how to get enough information on judicial ideology to cast an intelligent vote. In seeking to determine where a nominee will go once confirmed, a great deal of emphasis is placed on the nominee's willingness to commit to, and in fact follow, stare decisis. If the nominee maintains that commitment, then there are established precedents to know where the nominee will go. But, as has frequently been the case, the assurances on following stare decisis have not been followed. I use the illustrations of Chief Justice Roberts and Justice Alito as two recent confirmation processes--in 2005 and 2006--as illustrative. Chief Justice Roberts testified extensively about his purported fidelity to stare decisis. For example, during his confirmation hearing, he said: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough--and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongfully decided. . . . I think one way to look at it is that the Casey decision itself, which applied the principle of stare decisis to Roe v. Wade, is itself a precedent of the Court, entitled to respect under principles of stare decisis. He went on to say: Well, I think people's personal views on this issue derive from a number of sources, and there's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the Court faithfully under principles of stare decisis. Less than a year later, Justice Alito was no less emphatic. He testified: I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system, and it's the principle that courts in general should follow their past precedents. . . . It's important because it protects reliance interests and it's important because it reflects the view that courts should respect the judgment and the wisdom that are embodied in prior judicial decisions. He went on to say: There needs to be a special justification for overruling a prior precedent. Of consequence, along with adhering to the principle of stare decisis, is the Justices' willingness to accept the findings of fact made by Congress through the extensive hearing processes in evaluating the sufficiency of a record to uphold the constitutionality of legislative enactments. Here again, Chief Justice Roberts and Justice Alito gave emphatic assurances that they would give deference to congressional findings of fact. Chief Justice Roberts testified as follows: The Court can't sit and hear witness after witness after witness in a particular area and develop a kind of a record. Courts can't make the policy judgments about what kind of legislation is necessary in light of the findings that are made. . . . We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. . . . The courts don't have it. Congress does. It's constitutional authority. It's not our job. It is your job. So the deference to Congressional findings in this area has a solid basis. Chief Justice Roberts went on to say: [A]s a judge, you may be beginning to transgress into the area of making a law . . . when you are in a position of reevaluating legislative findings, because that doesn't look like a judicial function. But what happened in practice was very different, illustrated by the decision where the Chief Justice, in discussing McConnell v. Federal Election Commission, did not say whether McConnell was correctly decided. But the Chief Justice did acknowledge, as the Court emphasized in its decision, that the act was a product of an ``extraordinarily extensive [legislative] record. . . . My reading of the Court's opinion,'' said Chief Justice Roberts in his testimony, ``is that that was a case where the Court's decision was driven in large part by the record that had been compiled by Congress. . . . [T]he determination there was based . . . that the extensive record carried a lot of weight with the Justices.'' When the issue of campaign finance reform came up later before the Court, Chief Justice Roberts took a very different view of the weight to be given to congressional findings of fact. On the issue of the deference to be given to congressional findings of fact, Justice Alito's testimony was equally emphatic. He testified as follows: [The] judiciary is not equipped at all to make findings about what is going on in the real world, not this sort of legislative findings. And Congress, of course, is in the best position to do that. . . . Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings. . . . I have the greatest respect for [Congressional] findings. This is an area where Congress has the expertise and where the Congress has the opportunity to assemble facts and assess the facts. We on the appellate judiciary don't have that opportunity. In practice, there was very material deviation by both Chief Justice Roberts and Justice Alito, when it came to evaluating legislation with the point being what deference would be given to congressional factfinding. The commentators have been very critical of both of the Justices. For example, Prof. Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, had this to say, referring to the testimony just referred to, given by Chief Justice Roberts in his confirmation hearing. Professor Stone wrote that their records on the Court `` . . . speak much louder than their words to Congress.'' Their ``abandon[ment] of stare decisis'' in ``case after case'' has required Chief Justice Roberts to ``eat'' his words. Professor Stone has written that the two Justices have: . . . abandoned the principle of stare decisis in a particularly insidious manner, and their approach to precedent has been ``dishonest.'' A similar judgment was rendered by Prof. Ronald Dworkin of the New York University School of Law. Professor Dworkin said Chief Justice Roberts and Justice Alito, ``who . . . promised fidelity to the law'' during their confirmation hearings, have ``brazenly ignore[d] past decisions.'' None of the decisions of the Roberts Court speaks more directly to these issues than the case of Citizens United v. the Federal Election Commission. In that case, the Supreme Court overruled two decisions-- McConnell v. Federal Election Commission, decided in 2003, where Justices had, just 7 years earlier, upheld section 203 against a facial challenge to constitutionality; and Austin v. Michigan Chamber of Commerce, a 1990 decision where the Supreme Court upheld the constitutionality of even a broader State statute regulating corporate campaign-related expenditures. Overruling Austin was especially significant because Congress had specifically relied on that decision in drafting the McCain-Feingold Act. Justice Stevens said about that decision, in dissent, that ``pulling out the rug beneath Congress,'' in this manner, ``shows great disrespect for a coequal branch.'' Justice Stevens emphasized the deviation from the kinds of commitments which had been made to deference to congressional findings, noting that in that decision the Court, with the backing of Chief Justice Roberts and Justice Alito, can't decide the ``virtual mountain of evidence'' establishing the corrupting influence of corporate money on which Congress relied in drafting section 203. So there you have a much heralded recent decision in Citizens United, which has put the campaign finance area upside down; really on its head. In the context of the extensive congressional hearings, the finding of the corrupting influence of money and politics, the forceful assurance given by those two Justices to have it so cavalierly set aside, is a factor which has to be taken into account in how we evaluate the testimony of the nominees. Where, then, are Senators to look to try to make an evaluation of what is the judicial ideology of the nominee? I suggest there may be a way, looking into the earlier writings of the nominee, paying relatively little if any attention to the testimony on confirmation, to find out what the nominees believe, where they stand on the ideological spectrum. Some indicators as to where Chief Justice Roberts stood can be gleaned from views he expressed on the remediation of racial discrimination while serving in a political capacity as a member of the Reagan administration, much earlier in his career. His views attracted a great deal of attention when he commented on the 1982 reauthorization of the Voting Rights Act. He then wrote more than two dozen documents urging the administration to reject a provision of the then-pending House bill that would have allowed plaintiffs to establish a violation of the act, not only by establishing that a voting practice was impermissibly motivated, but also by establishing that it had a discriminatory effect. He claimed the so-called ``effects test'' would establish a quota system in elections and, more disturbingly still in light of the extensive record of voting rights amassed by congressional committees, he said that ``there was no evidence of voting abuses nationwide.'' Hardly consistent with the factual record which had been amassed giving some indication as to this predilections at that time. He then made the comment in a memorandum on the same subject: ``Something must be done to educate the Senators on the seriousness of this problem.'' Another example in the race discrimination context was a 1981 memorandum that Roberts wrote to the Attorney General questioning the legality of regulations promulgated by the Department of Labor to enforce Executive Order 11246. Issued in 1965, that order requires private-sector employers to contract with the Federal Government to evaluate whether qualified minorities and women are underutilized in their workforce; that if so, to adopt roles to increase their representation by encouraging women and minorities to apply for positions. It does not require or authorize employers to give any racial or sex-based preference. In fact, its implementing regulations expressly prohibit such preferences. Roberts then attacked the regulations on the ground that they conflicted with the color blindness principle of Title VII of the Civil Rights Act of 1964 and used ``quota-like concepts.'' In that context only the most extreme conservatives have questioned the legality of that Executive order. Roberts, as a younger man, working in the Federal Government, wrote despairingly about ``so-called fundamental rights,'' including the right to privacy. Similar traces may be found in examining Justice Alito's earlier writings. Among them was his characterization of Judge Bork as ``one of the most outstanding nominees of this century.'' Justice Alito shared Bork's antipathy, in particular, to the abortion right first recognized in Roe v. Wade. While Justice Alito was serving as assistant to Solicitor General Charles Fried in 1985, he took it upon himself to outline, in the words of Prof. Lawrence Tribe, ``a step-by-step process toward the ultimate goal of overruling Roe.'' That year, when applying for a position as Assistant Attorney General in the Office of Legal Counsel, Judge Alito unequivocally stated in his cover letter that the Constitution does not provide for a right to terminate a pregnancy. Justice Alito's extrajudicial writings also evidence an expansive view of executive power. Among them, in 1989, was a speech defending Justice Scalia's lone dissent in Morrison v. Olson. There the Court upheld the constitutionality of the independent counsel law passed by Congress in the wake of Watergate. Justice Scalia was the lone dissenter. He also expressed his agreement with the ``unitary'' executive theory around which Justice Scalia had framed that dissent. Justice Alito's conservative views were again evidenced in his support of the expansion of executive power at the expense of Congress reflected in the memorandum he wrote supporting the use of Presidential signing statements to advance a President's interpretation of a Federal statute. So that in seeking to make a determination of ideology, we have seen from the analysis, the extensive testimony of both Chief Justice Roberts and Justice Alito on two core issues--stare decisis and the deference to be afforded to congressional factfinding--a disregard of the platitudes of the generalizations of the methodology so emphatically testified to before the Judiciary Committee, and requiring a search into their views as expressed in other contexts where there is not the motivation for Senate confirmation. The kinds of answers given by other nominees require similar scrutiny. The Judiciary Committee, for example, should no longer tolerate the sort of answer which Justice Scalia gave during his confirmation hearing when I asked him whether Marbury v. Madison was settled precedent. One would think that that would be about the easiest kind of questions to answer. In 1986, in the so-called courtesy hearing, I asked Justice Scalia, then Judge Scalia, about a bedrock case like Marbury v. Madison. As evidenced during the hearing, he refused to answer with a yes or no on the question. He acknowledged only that Marbury was a ``pillar of our system'' and then said: Whether I would be likely to kick away Marbury v. Madison, given not only what I just said, but also what I have said concerning my respect for the principle of stare decisis, I think you will have to judge on the basis of my record as a judge in the Court of Appeals, in your judgment as to whether I am, I suppose on that issue, sufficiently intemperate or extreme. In effect, he was saying that a nominee who kicks the legs out from under Marbury v. Madison should be considered ``intemperate or extreme,'' and hence presumably denied appointment to the Court. Yet he would not forthrightly rule out a possible overturning of Marbury v. Madison. And so went the balance of the testimony Justice Scalia gave in his confirmation hearing. It is my suggestion that that kind of response ought no longer to be tolerated. There is an abbreviation for Justice Scalia's testimony of the famous limitation of comment by someone arrested in a time of war to give only name, rank, and serial number. I think, by any fair standard, Justice Scalia would only give his name and rank, and we ought to be looking for something substantially more. Nor can the committee, in my judgment, any longer accept a statement given by Justice Clarence Thomas in 1991 that he did not have an opinion as to whether Roe was properly decided, and, more remarkably still, could not recall ever having had a conversation about it. In searching for some of the bedrock principles which I would suggest the Senators ought to look for in the confirmation process, I would enumerate five. First, I believe a nominee should accept that the 14th and 15th amendments confer substantial power on Congress to enforce their substantive provisions. In the past 13 years since the case in the City of Boerne v. Flores, the Court has adopted a concept of proportionality and congruence, a standard which is impossible to understand, certainly impossible for Congress to know on our legislative findings and our legislative enactments as to what will satisfy the Supreme Court of the United States on what they may, at some later day, consider to be ``proportional and congruent.'' I suggest that Justice Breyer has the correct standard when he said the courts should ask no more than whether ``Congress could reasonably have concluded that a remedy is needed and that the remedy chosen constitutes an appropriate way to enforce the amendments.'' A second guiding principle I would suggest is, a nominee should accept that the Constitution, and in particular the due process clause of the 14th amendment, protects facets of individual liberty not yet recognized by the Court. The Court has repeatedly held, through the due process clause of the 14th amendment, the Constitution protects facets of liberty, a realm of personal liberty which the government may not enter, and in accordance with the shifting values of our society has expanded the reach of the due process clause.

Mr. SPECTER. I suggest the absence of a quorum.

Mr. SPECTER

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

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

Mr. SPECTER. Mr. President, I have sought recognition to discuss the urgent need for comprehensive immigration reform in the United States. Earlier today, the Senate considered a number of proposals for border security, and there has been extensive media attention to an administration proposal to dispatch substantial numbers of the National Guard for border security. The Senate and the House of Representatives wrestled with this issue in 2006. Each House produced a bill. At that time, I chaired the Judiciary Committee and managed the bill in committee and on the floor. The Senate bill, known as the McCain-Kennedy bill, provided for comprehensive immigration reform. The House passed a bill which dealt only with Border Patrol and employer verification. For reasons which need not be commented upon now, there was no conference and that bill languished. In the following year, Senator Reid, the majority leader, asked Senator Kennedy and me to lead an informal group to try to structure a comprehensive immigration reform, with the decision not to run it through committee, and that effort was not successful. As a result of the failure of Congress to act, we have seen many States and municipalities enact legislation to try to deal with this issue, in the absence of what Congress has a duty to do and should have been doing. Most recently, the Arizona law has produced enormous controversy. The Arizona law provides that a failure to carry immigration documents would be a crime and give police broad power to detain anyone suspected of being in the country illegally. The essential provisions invite racial profiling, which is highly questionable on constitutional grounds. Litigation is now pending to have that act--to declare it as being unconstitutional on its face. When Congress failed to legislate in 2006 and the informal group designated by Majority Leader Reid was unsuccessful in coming up with a bill, I introduced a draft bill on July 30, 2007, as reported in the Congressional Record at S. 10231, which dealt with an effort to remove the fugitive status from undocumented immigrants. It was my thought at the time if we did not get into the complex issues which had proven so troublesome in 2007 and earlier in 2006, that we might be able to make some substantial progress moving forward for comprehensive immigration reform. My thought at that time was to remove the fugitive status but not to provide for a path to citizenship. I made that suggestion even though my preference was with the Senate bill enacted the year before which did provide a path to citizenship. Even that path to citizenship was going to be long delayed. It would take at least 8 years, it was estimated, to clear up the backlog of pending applications for citizenship, and another 5 years to deal with the 12 million undocumented immigrants, so that there was not a whole lot of practical difference in eliminating the path to citizenship. That could always be taken up at a later time. But if the fugitive status was eliminated, that would bring most of the 12 million undocumented immigrants--or at least calculated to bring most of the 12 million undocumented immigrants--out of the shadows and identify those who were holding responsible jobs, paying taxes, and raising their families, in many instances with children who were American citizens. This approach was postulated on the obvious proposition that we cannot deport 12 million people. It is simply impossible to take them into detention and to have them housed pending deportation proceedings. Bringing the undocumented immigrants out of the shadows would provide an opportunity to identify those who were convicted criminals where they posed a real threat. At that time I visited a number of detention centers where undocumented immigrants convicted of crimes were held and introduced legislation which would have accelerated the deportation of those who were criminals and were a threat to our society, demonstrated by their prior conduct. But we continue to have the problem of undocumented immigrants living in the shadows, afraid of being taken into custody, especially in Arizona, and concerns everywhere with the prospect of the Arizona law being enacted other places, that they continue to be at the mercy of unscrupulous employers. We have enormous areas of need for temporary workers. That is a proposition which many of my colleagues have been urging and which I think needs to be acted upon. We have the suggestion of the so-called DREAM Act which I had at one time cosponsored. I later came to the view that if we cherry-picked--if we take the DREAM Act, if we take temporary workers, if we take the expansion of visas, which is necessary when so many people want to come to this country who would be very productive in our high-tech society-- Ph.D.s, highly educated individuals--that if we move along any of those lines and cherry-picked, it would take away a lot of the impetus for the notion to have comprehensive immigration reform. So I continue to believe it is not desirable, not advisable to cherry-pick, even though some of those individual items may be very meritorious on their own. In light of what has happened in Arizona and in light of what the administration is proposing on the use of the National Guard, it is my view it is more imperative than ever that the Congress face up to its responsibility, tackle this issue, notwithstanding the political pitfalls, and to deal with it. Mr. President, I ask unanimous consent that the text of my prepared statement be printed in the Congressional Record as if read in full, and the abbreviated statement I made on July 30, 2007, be printed in the Record since these two statements more comprehensively summarize my views on this subject.

Mr. SPECTER. I thank the Chair. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

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

Mr. SPECTER. Madam President, I have sought recognition to comment further about the pending amendment to make tortfeasors, under the Securities Act, liable for civil damages; that is, people who engage in fraudulent conduct. We have a deep recession. Millions of people have lost their jobs. There were enormous financial losses. There were many contentions of fraudulent practices being responsible for that conduct. In this act, we are seeking to reform Wall Street. The practice had been, the law had been, for decades, under the Securities Act, someone who was cheated, defrauded by people who practice under the Securities Act could sue them. That would involve those aiders and abettors and people in the chain beyond the principal would be responsible. I have offered an amendment on behalf of myself and Senators Reed, Kaufman, Durbin, Harkin, Leahy, Levin, Menendez, Whitehouse, Franken, Feingold, and Merkley to reinstate the law prior to what it had been prior to the decision of the Supreme Court. The Supreme Court has held that aiders and abettors are not liable and that there is a requirement that the defendant must have made the representation directly to the person buying or selling the securities, which is a sharp reversal from what the law had been. It is anomalous, unheard of, to have criminal liability under the Federal Criminal Code for aiding and abetting but not to have liability under the civil claims. It is a much higher standard of proof, criminal culpability, to put somebody in jail than it is to establish a claim for monetary damages. But that is where we find the law and we find people in urgent need of this kind of standing to recover their damages but also to have this procedure serve as a deterrent to Wall Street fraud. The issue was succinctly summarized by a distinguished Federal judge, Judge Gerald Lynch, in a case captioned In re Refco Litigation, 609 F. Supp. 2d 304 (S.D.N.Y. 2009), to this effect: It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of fraud. . . . There are accomplices and there are accomplices: after all, in the criminal context, when the Godfather orders a hit, he is only an accomplice to murder--one who ``counsels, commands, induces or procures'' but he is nonetheless liable as a principal for the commission of the crime. Likewise, some civil accomplices are deeply and indispensably implicated in wrongful conduct. So that you have aiders and abettors. There have to be people who are participants in the fraud. It simply is not a one-person operation. Yesterday, I put into the Record the impact of these civil suits in financial recoveries compared to the lesser amounts which can be collected by the SEC. Illustrative of that were two cases--Enron, where the SEC recovered $450 million and the private litigants recovered $7.3 billion--14, 15 times more. In the WorldCom case, the SEC recovered $750 million, the private litigants recovered $6.85 billion. So there is an enormous difference. This is a subject I have had a deep concern about going back to my law school days, when I wrote a comment for the Yale Law Journal on the subject, about the importance of private prosecutions. Private actions have been very important--treble damages under our antitrust laws, very important under our securities laws. In 1995, we restricted the scope of discovery. I urged the President, at that time, to veto the bill. Just a very brief personal story. I was in my condo one night at about 10:30, quarter of 11, I got a call from the White House. The President came on the line and said: Do you have a few minutes to let me read to you my veto message? Well, I had more than a few minutes. I was very interested in the President's veto message. But the law, nonetheless, notwithstanding the veto, the law was modified. There is other litigation pending to open the scope of pleading. Federal Rules of Civil Procedure have traditionally been what we call notice pleading; that is, put the defendants on notice as to the claim. Then, under the discovery proceedings, the party is then entitled to probe into the records of the defendant because these are all transactions within the sole control and possession of the defendant on almost all circumstances. When the Supreme Court of the United States was considering taking the Stoneridge case, I wrote President Bush a letter, on August 3, 2007, urging him to allow the Solicitor General to respond to the request of the Securities and Exchange Commission for the Solicitor General to argue the case. The Solicitor General was precluded from doing so. Stoneridge came down with a very restrictive holding that the people responsible had to make direct representations to the person buying or selling the securities--which is an unrealistic and unreasonable standard. It backed up the prior decision of the Supreme Court in 1994, in Central Bank of Denver, which eliminated aiders and abettors from responsibility. This is a very important bill. I did compliment the distinguished chairman for his very effective work on it. I do believe it is fair and accurate to say this is one of the most important provisions of this bill. I thank the Chair and yield the floor.

Mr. SPECTER. Madam President, I have sought recognition to ask cosponsors of the pending amendment who wish to present an argument to come to the floor as early as practical. The pending amendment involves reinstating a civil cause of action against aiders and abettors. The law, up until 1994 with a Supreme Court decision, provided that aiders and abettors were liable for damages for those who had been defrauded in securities transactions. We all know the massive problems caused by Wall Street operations with many allegations of fraud. In our effort to reform Wall Street, this is a very important provision. Traditionally, people who have been injured, lost money, as a result of fraud have had a civil right of action to go into a civil court. The law had been uniform that under the Securities Act those cases could be brought. There have been two Supreme Court decisions which have modified that, requiring this act change the decisions of the Supreme Court of the United States--which we have the authority to do: not decided on constitutional grounds but decided on grounds of statutory interpretations. So Congress has the plenary power to make that modification. I have offered the amendment and argued it briefly. We will discuss it further a little later this morning. I offered it on behalf of Senator Reed of Rhode Island, Senator Kaufman, Senator Durbin, Senator Harkin, Senator Leahy, Senator Levin, Senator Menendez, Senator Whitehouse, Senator Franken, Senator Feingold, and Senator Merkley, and I want to let all of the cosponsors know the matter is now on the floor, and if they care to support the arguments, now would be the time to come to the floor. Madam President, I see other colleagues waiting for recognition, so I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I now send to the desk a modification of amendment No. 3739. I suggest the absence of a quorum.

Mr. SPECTER. I call up amendment No. 3776, as modified.

Mr. SPECTER. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. SPECTER. Mr. President, I have offered this amendment on behalf of quite a number of Senators--Senator Reed, Senator Kaufman, Senator Durbin, Senator Harkin, Senator Leahy, Senator Levin, Senator Menendez, Senator Whitehouse, Senator Franken, Senator Feingold, Senator Merkley, and myself. This amendment provides that the decisions of the Supreme Court of the United States limiting claims under the securities acts for aiding and abetting will be overturned by this legislation. This amendment is very similar to an amendment which was offered in the 107th Congress by Senator Shelby, the ranking member of the Banking Committee. For many years, the federal law provided a private right of action against aiders and abettors. As of 1994, every circuit of the federal courts of appeals had included civil liability in a private lawsuit under the securities laws. In a radical departure in 1994, the Supreme Court held, in Central Bank of Denver, that aiders and abettors are not liable in private suits. The Court's 5-to-4 decision in Stoneridge in 2008 complicated the matter even further, where the Supreme Court held that if the defendant did not make representations directly to the person buying or selling the securities, that the individual was not liable, even if he himself had engaged in fraudulent conduct. This is a subject I have long been interested in. Back in 2007, I wrote to President Bush concerning the failure of the Solicitor General's office to file a brief that was requested by the Securities and Exchange Commission in the Stoneridge case. The Securities and Exchange Commission was very concerned about that. I urged that the Solicitor General take action. I ask unanimous consent that a copy of this letter to the President be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. Mr. President, the absence of civil liability is striking in this situation, because there is criminal liability for aiding and abetting under the federal criminal code. I know of no situation where there is criminal liability for conduct, but it does not give rise to a civil claim for relief or a civil cause of action. During a hearing on this subject, a very distinguished scholar, Professor Coffee of the Columbia Law School, pointed out how unusual that was in his experience, much broader than mine, that this was anomalous. In the case of Refco Securities Litigation, reported at 609 F. Supp. 2d 304 (S.D.N.Y. 2009), Judge Gerald Lynch made the same point: It is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable in damages to the victims of the fraud. . . . There are accomplices and there are accomplices: after all, in the criminal context when the Godfather orders a hit, he is only an accomplice to murder-one who ``counsels, commands, induces or procures,'' but he is nonetheless liable as a principal for the commission of the crime. Likewise, some civil accomplices are deeply and indispensably implicated in wrongful conduct. But on the current state of the law, there is no accountability for civil damages for aiders and abettors. Prof. John Coffee made this point in our hearing: Does anyone really believe today that in this post-Madoff world, that the SEC, by itself, can adequately deter most secondary participants in securities fraud? Even when the SEC sues, moreover, its remedial authority is very limited. It can neither recover losses for injured investors nor deter fraud in the first place. A comparative impact of private lawsuits has noted that in the Enron case, the private litigants recovered $7.3 billion, and the SEC recovered $450 million. In the WorldCom case, private litigants recovered $6.85 billion; the SEC recovered only $750 million. In the Dynegy case, private litigants recovered $474 million, the SEC $198 million. In the AOL-Time Warner case, private litigants recovered $3.1 billion, and the SEC recovered $360 million. According to testimony given on my aiding-and-abetting legislation last year before the Subcommittee on Crime, the SEC recovered a mere $8 billion from security law violators since enactment of Sarbanes-Oxley in 2002, whereas the private litigants in Enron alone recovered $7.3 billion. So the impact of the private lawsuits is very important. We have seen the extraordinary impact of Wall Street fraud: the losses of 6\1/2\ million jobs, the reduction of the gross national product enormously. This private right of action is a very important part of keeping Wall Street honest with the litigation which it has produced. There has been a letter filed by a number of entities in opposition to the amendment, headed by the U.S. Chamber of Commerce, raising a point that, ``The provision would subject defendants to liability whether or not they have any idea that the conduct they are assisting is wrongful.'' Well, that is a gross misstatement of what this bill does. This amendment has been very narrowly drawn. It applies only to those who knowingly provide substantial assistance to the primary violator. The scienter standard is more defendant-protective than the standard set forth in Senator Shelby's legislation which he introduced in the 107th Congress. The scienter standard in the Shelby bill was ``recklessness,'' not ``knowingly acted upon.'' The ``knowingly'' scienter standard in the amendment is identical to the restrictive standard in 15 U.S.C. 78(t)(e) governing aiding-and-abetting actions brought by the Securities and Exchange Commission. In order to eliminate any conceivable doubt, a modification has been added to the amendment as originally filed, specifying: ``For purposes of this paragraph, a person acts knowingly only if the person has actual knowledge of the improper conduct underlying the violation described in the preceding sentence and the person's role in assisting that conduct.'' So, in essence, here we have a very tightly drawn amendment. It had been introduced earlier as S. 1551. I thank the distinguished chairman of the committee for his accommodation in listing this amendment for argument. This is a very important amendment. There are a lot of amendments pending. But I do believe that among the matters to be considered in this bill, this is one of the most important. You have a lot of people very badly damaged by these security fraudulent actions. The Securities and Exchange Commission is limited in personnel and staff to act on them. These private rights of action have long been a source of enormous aid in enforcing the law in antitrust cases and Securities Act cases. Private prosecutions are enormously important. By way of footnote, this is a subject of a law school comment that I wrote many years ago at Yale about the background for private action. It is a very important supplement to what public officials and public agencies can do. I urge my colleagues to support this amendment. U.S. Senate, Committee on the Judiciary, Washington, DC, August 3, 2007. The President, Washington, DC. Dear Mr. President: I am writing to express my concern about the Solicitor General's failure to file a brief that was requested by the Securities and Exchange Commission in Stoneridge Investment Partners v. Scientific Atlanta. The outcome of Stoneridge will also determine whether tens of thousands of Enron investors will secure a day in court. Earlier this year, the SEC voted to file an amicus brief in Stoneridge in favor of scheme liability, which is the same position the Commission has previously taken in similar cases in lower courts, including the Enron case. It has been reported that the Solicitor General did not file the brief, based on your views, and that the Solicitor General may actually file an amicus brief arguing the opposite position recommended by the SEC. The SEC is an independent agency and its attorneys can represent the agency in trial courts and courts of appeals. The SEC, however, cannot represent itself at the Supreme Court of the United States--it must convince the Solicitor General to represent the SEC's position. Independence, when used to describe an administrative agency, connotes independence from the President and the ability to take positions or engage in actions that do not necessarily reflect the policies and views of the Administration. Chairman Cox, in response to questions about the SEC's vote to file an amicus brief in Stoneridge, stated at a Congressional hearing on June 26, 2007, that the ``law has to have some objective meaning. It can't be just a question of how we all feel about it'' and that laws should not change with the change in political composition of the Commission. He explained that he did ``not think that there's anywhere where it could be more important for there to be predictability and clarity in rulemaking than when it comes to our capital markets, because so much is at stake that people have to make big bets on whether or not what they're doing is the right thing to do. . . . I think we do a great disservice when we are anything but clear and predictable, rule-based and law-based.'' I agree with Chairman Cox. On the issue of predictability in the law, I note what happened to shareholders who were defrauded by Enron when they brought a lawsuit charging certain Enron executives and directors--along with the company's accountants, law firm and banks--with violation of federal securities laws. The alleged violations included massive insider trading while making false and misleading statements about Enron's financial performance. The shareholders reached a settlement with several financial institutions, but while claims were still pending against a number of additional institutions, in March 2007, the Court of Appeals for the Fifth Circuit granted the banks complete immunity from liability. The court acknowledged that the banks' conduct was ``hardly praiseworthy,'' but it ruled that because the banks themselves did not make any false statements about their conduct to the shareholders they could not be held liable, even if they knowingly participated in the scheme to defraud. In an extraordinary admission, the court acknowledged that the ruling runs afoul of ``justice and fair play.'' The ruling also is at odds with the position of the SEC, with its wealth of specialized knowledge on the issues of contention in both the Enron case and Stoneridge, and with rulings of other courts. The Solicitor General is entitled to aid the Court in its interpretation of the law, and I applaud his close attention to this critical case. I am concerned, however, that he has been unable to articulate a legal position--either for or against the plaintiffs--that is independent from the Administration's policy preferences. As you have often said, substantive changes to the law should be made through the legislative process, not through the courts. Thank you for attention to this matter. Sincerely, Arlen Specter.

Mr. SPECTER. I yield the floor, and I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, in a four-part series titled ``Justice: Delayed, Dismissed, Denied,'' published in December 2009, the Philadelphia Inquirer reported on the failure of the Philadelphia criminal justice system to provide fair and speedy justice. ``It is a system that too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits--fails to provide justice.'' i Given that Philadelphia has the highest violent crime rate among the 10 largest cities in the United States, this is an urgent problem which Senator Specter has worked hard to address. In the past 5 months, Senator Specter has taken a leadership role by holding three Senate field hearings, bringing together the experts and key players in the criminal justice system to work collaboratively to find solutions to these problems. He has sought and obtained funding for the U.S. Marshals Service's Fugitive Task Force to provide assistance in locating and arresting Philadelphia's fugitives. Finally, he has introduced and supported significant legislation to better protect State witnesses, to fund State witness protection programs, and to fund State fugitive recovery efforts and the entry of State warrants into the national warrant database. Using statistics from the Administrative Office of the Pennsylvania Courts and the Department of Justice, Bureau of Justice Statistics, the Philadelphia Inquirer reported that Philadelphia, among large urban counties, has the Nation's lowest felony conviction rate. For most big cities the conviction rate is 50 percent but for Philadelphia the conviction rate is only 20 percent, and that rate has been steadily declining over time. While the city's rate of conviction for murder is excellent--82 percent compared to the U.S. average of 71 percent--for other violent felonies it is abysmal: Nearly 2/3 of those charged with violent crime offenses walk free of all charges; Only 1 in 10 people charged with gun assaults is found guilty of that charge; Only 1 in 5 accused armed robbers is convicted of that charge; Only 1 in 4 accused rapists is convicted of rape; One-half arrested for possession of illegal handguns beat the gun charges; and of the 4,500 who reported being robbed at gun point, only 200, or 4 percent of individuals were convicted. The Philadelphia Inquirer identified a number of systemic failings as contributing factors to this crisis, including increasing incidents of witness intimidation; exploding criminal caseloads incentivizing judges to dismiss cases rather than to try them (of the violent crime cases in 2006 and 2007 disposed without a conviction, 92 percent were dropped or dismissed and only 8 percent of defendants were found not guilty); the number of judges not keeping pace with the substantial increase in criminal case filings (since 1989 the criminal docket has increased by 51 percent but the number of judges has not changed; not surprisingly the number of dismissals has doubled). Additional contributing factors include trial delays caused by defense attorneys' delay tactics, which cause witnesses to stop coming to court and cases to be dismissed; dismissals because inmates and/or police officers routinely fail to timely appear in court; and a broken bail system causing Philadelphia to have 47,000 fugitives and to be tied with Newark, New Jersey as having the highest fugitive rate in the Nation.ii Senator Specter's significant actions to address this crisis and to restore confidence in the Philadelphia criminal justice system are detailed below. Witness intimidation and violent crime are problems that Senator Specter has worked on for decades, since he was an assistant district attorney and later district attorney in Philadelphia, and on the Judiciary Committee, where he has served since 1981 when he was first sworn in as a U.S. Senator. As chairman of the Senate Judiciary Crime and Drugs Subcommittee, Senator Specter chaired a field hearing in Philadelphia on witness intimidation at the State and local level on January 8, 2010.iii This hearing brought together experts and leaders in the field to help find solutions for this pervasive and serious problem. At the hearing, Philadelphia Police Commissioner Charles Ramsey, as well as Michael Coard, a respected Philadelphia defense attorney, and Associate Professor Richard Frei, an academic, testified. Two parents, each of whom lost a child to gun violence, also testified. Barbara Clowden testified that her son Eric Hayes, then 17 years old, was killed just 2 days before he was to testify in an arson trial in Philadelphia. Because Eric's life had been threatened, in January 2006 his family entered into the city's witness relocation program. Eventually the money from the program ran out and they had to relocate to northeast Philadelphia, where Eric was murdered. No one, to date, has been convicted of Eric's murder. Ted Canada, a Philadelphia resident and SEPTA bus driver, also testified. In 2005, his son Lamar Canada was shot 12 times and killed over an alleged gambling debt.iv One witness to the shooting, Johnta Gravitt, then 17 years old, was murdered 10 days after he testified at the preliminary hearing and identified one of the shooters. Another witness initially cooperated but after his statement to the police was publicly posted in his neighborhood identifying him as a ``snitch,'' he recanted. The most notorious example of witness intimidation in Philadelphia involves Kaboni Savage, a drug kingpin who was federally indicted last April on racketeering and murder charges for retaliating against his former drug associate, Eugene Coleman. Coleman had agreed to testify against Savage in a Federal trial. The Federal charges allege that to retaliate for this, Savage orchestrated the firebombing of Coleman's family home on the 3200 block of North 6th Street in Philadelphia during the early morning hours of October 9, 2004. Killed in the fire were Coleman's mother, Marcella Coleman, age 54; Coleman's infant son, Damir Jenkins, 15 months old; Marcella Coleman's niece, Tameka Nash, age 34, and her daughter, Khadjah Nash, age 10; Marcella Coleman's grandson, Tahj Porchea, age 12; and a family friend, Sean Rodriguez, age 15. In a conversation secretly recorded by court-authorized wiretaps, Savage explained how witness intimidation works, ``Without the witnesses, you don't have no case?. . . . No witness, no crime.''v The witness intimidation problem is exacerbated by internet sites, such as whosarat.com, which expose the identities of witnesses and government informants. Gang members and criminals are becoming more computer savvy. They use the internet to find out who may be a cooperating witness by accessing public court dockets. They also access other sites to locate these individuals. With this information obtained anonymously through the Internet, gang members and other criminals can easily threaten or harm witnesses, as well as their family members.vi The ``stop snitching'' culture in Philadelphia has taken hold even among law abiding people. Years ago, popularized in movies and television, the code of silence started with organized crime and applied only to its members who used intimidation and highly visible acts of retaliation against those who broke it to maintain adherence to the code. Today that code of silence has involved into a popular and pervasive stop snitching culture.vii It has expanded to include threats against people who have no stake in a specific case and it is now directed toward anyone providing information to authorities. It has been strengthened by the strong distrust and alienation many urban youth have toward the police. It was shown at the hearing that the more people perceive the justice system to be biased, ineffective or corrupt, the more likely it is that they will resort to community self-protection and enforcement. As reported by the Philadelphia Inquirer on December 14, 2009, ``[p]rosecutors, detectives, and even some defense attorneys say witness fear has become an unspoken factor in virtually every court case involving violent crime in Philadelphia. Reluctant or terrified witnesses routinely fail to appear in court, and when they do, they often recant their earlier testimony or statement to police.'' viii One Philadelphia assistant district attorney is quoted in the article as saying that at least one witness in every murder trial recants. At times, the local prosecutors are forced to lock up witnesses on material witness warrants to assure their appearance at trial.ix In Philadelphia between 2006 and 2008, the District Attorney's Office filed witness intimidation charges against approximately 1,000 individuals. Their conviction rate on these charges, however, is only 28 percent.x Criminal trials cannot proceed unless there are witnesses, and if witnesses are subject to intimidation or even worse, murdered, criminal cases cannot go forward. And unless witnesses can be assured they will be protected, the problem of witness intimidation cannot be expected to go away. Philadelphia's witness relocation program was cut from a high of $988,000 in 2006-07 to $747,000 in 2008-09. On average last year the program spent $11,000 per witness. Compare that with the Federal witness protection program that spends on average $150,000 for each witness in the Federal program. More money is needed to fund Philadelphia's witness relocation program. It is imperative that people be protected if they step forward and provide information to law enforcement. As Philadelphia Police Commissioner Charles H. Ramsey testified at the subcommittee hearing, ``the only way we're going to deal with crime in communities is when the community steps forward, but they have to feel comfortable in doing so and know they have support.'' xi To better protect State witnesses from intimidation, threats, and violence, and to send loud and clear the message that serious penalties will be imposed on those who dare to obstruct justice in our country Senator Specter on February 23, 2010, introduced The State Witness Protection Act of 2010,'' S. 3017. The bill ensures that State witnesses will receive the same protections from actions of intimidation and retaliation that Federal witnesses have under Federal law. Making this a Federal offense and bringing in the FBI to investigate, as Commissioner Ramsey testified, ``would make a tremendous difference and make people think twice before they'' engaged in witness intimidation. Commission Ramsey explained it this way: I just think the whole environment or atmosphere when you go into a Federal court versus a local court is just somewhat different, and [defendants] haven't been exposed to it that often. I just think it has an impact in the feedback I've gotten from people on both sides, whether it's another law enforcement agency or from a person who's been in the criminal justice system. They do not want to go into Federal court. (Tr. at 16).xii The bill tracks the language of the Federal witness tampering and intimidation statutes, 18 U.S.C. Sec. Sec. 1512 and 1513, and provides the same penalties for crimes against State witnesses as now are provided for crimes against Federal witnesses. For State court proceedings, the bill makes it a Federal offense to kill, physically harm, threaten to physically harm, harass, or intimidate, or offer anything of value to, a State court witness or victim if done with the intent to influence another person's testimony; to induce another to withhold testimony or records, alter or destroy evidence, evade legal process, or be absent from a State proceeding if that person has been summoned by legal process; to hinder or prevent a person from providing information to law enforcement; or to retaliate against anyone for being a witness or for providing testimony or information to law enforcement. Federal jurisdiction is established by prosecuting only cases where there are communications in furtherance of the offense by mail, interstate or foreign commerce by any means, including computer, interstate or foreign travel in furtherance of the commission of the offense, or the use of weapons which have been shipped or transported across State lines. Any attempt or conspiracy to commit these same offenses is also illegal and subject to the same penalties. The bill also provides for specific sentencing guideline enhancements for all obstruction offenses. To further address the growing problem of witness intimidation, Senator Specter cosponsored, and voted out of Senate Judiciary Committee on March 22, 2010, the Witness Security and Protection Grant Program Act of 2010, H.R. 1741, a bill which authorizes $150 million in competitive grants over 5 years to State and local governments to establish witness assistance programs. Specifically, the bill requires the Attorney General to make competitive grants to State and local governments to establish and maintain short-term witness protection programs for court proceedings involving homicide, violent felonies, serious drug offenses, gangs, and/or organized crime. It also requires the Attorney General to collect data and develop best practices-- witness safety, short-term and permanent witness relocation, and financial and housing assistance--from the grantees and report this information back to Congress, States and other relevant entities. This legislation passed the House with an overwhelming bipartisan vote of 412-11 in June 2009. The bill is also supported by the National Governors Association, the National Conference of Mayors, the National District Attorney Association, and the National Center for Victims of Crime. It is currently pending action on the Senate floor. According to the Philadelphia Inquirer, the Philadelphia bail system is broken.xiii For both the Court of Common Pleas and the Municipal Courts in Philadelphia, there are 48,511 cases in fugitive status and 39,110 individual fugitives. These numbers do not include probation absconders which, if added, would make the total individual fugitive number 46,839.xiv According to Bureau of Justice Statistics report from 2004, Philadelphia is tied with Newark, NJ, as having the Nation's highest fugitive felony rate of 11 percent. The problem is compounded because there are only 51 officers in the Warrant Unit,xv which is assigned the task of rounding up fugitives. That means each officer has a 900 fugitive case load.xvi The problem is further compounded by the fact that fugitives, after they are caught, are routinely released again on bail and no bail money, once again, is collected. According to the Philadelphia Inquirer, the city is owed $1 billion in bail monies which cannot be collected because the Clerk of Quarter Sessions kept no computerized records.xvii To address the failure of law enforcement to track down and capture criminal fugitives, Senator Specter convened another Senate Judiciary Subcommittee field hearing on January 19, 2010, titled, ``Exploring Federal Solutions to the State and Local Fugitive Crisis.'' xviii Seth Williams, the recently elected district attorney for the city of Philadelphia, testified at the hearing. Also testifying at the hearing were John Patrignani, the Acting U.S. Marshal for the Eastern District of Pennsylvania; David Preski, the Chief of the Pre- Trial Service Division and the person in charge of the Warrant Unit; and Roy G. Weise, the Senior Adviser for the FBI's Criminal Justice Information Systems and a senior administrator in charge of the National Criminal Justice Information System, more commonly known as NCIC, the national warrant database. A representative from the Clerk of Quarter Sessions also testified. That hearing revealed that Philadelphia's fugitive problem, though very serious in scope, is not just a local problem but is in fact a significant national problem. Nationwide, there are an estimated 2.8 to 3.2 million active Federal, State, and local outstanding felony warrants. Every day large numbers of fugitives evade capture because State and local law enforcement authorities have insufficient resources to find and arrest them. And even if found, State and local law enforcement authorities often do not have the funds to pay for the extradition of the fugitive to face trial. Shockingly, many fugitives are released without prosecution. Many fugitives go on to commit additional crimes. The nationwide database operated by the FBI's National Crime Information Center, NCIC, is missing over half of the country's 2.8 to 3.2 million felony warrants, including warrants for hundreds of thousands of violent crimes. Fugitives who have fled to another State will not be caught--even if they are stopped and questioned by the police on a routine traffic stop--because their warrants have not been entered into the NCIC database. In early 2008, the St. Louis Post Dispatch published a series of articles--affirmed by the Department of Justice--documenting law enforcement's widespread failure to find and arrest fugitives.xix For purposes of the series, ``fugitive'' included un-arrested suspects with pending warrants that law enforcement cannot find, and those who cannot be found after violating the rules of their pre-trial detention, probation, or parole. The articles revealed that the reach of this national problem is extensive and cited federal estimates from 2 years ago that as many as an estimated 800,000 to 1.6 million outstanding State or local warrants are inaccessible to law enforcement outside the State or locality in which they were issued because the information about the warrants had not been entered into the NCIC database. In Philadelphia, while all warrants, including bench warrants, are entered into a State database, only a few warrants are entered into the NCIC database. The hearing established a little known fact: that the Philadelphia Police Department only entered into the NCIC database a few hundred bench warrants deemed by the District Attorney's Office to concern extraditable offenses and, surprisingly, the Police Departments made these entries manually and not by automatic computer transfers.xx Thus, those who abscond from criminal proceedings in Philadelphia and flee to other States likely will not be captured because information from their warrants was not automatically entered into the NCIC database. To make our communities safer by increasing the number of State and local fugitives arrested and prosecuted, Senator Specter, along with Senator Durbin, on March 16, 2010, introduced the Fugitive Information Networked Database Act of 2010, known as the FIND Act, S. 3120. Based on legislation that then-Senator Joe Biden and Senator Durbin introduced in 2008, the FIND Act bolsters the effectiveness of the NCIC database by providing grants for local governments to develop and implement warrant systems that are interoperable with the NCIC database. The bill also provides funding for authorities to extradite fugitives for prosecution. Specifically, the FIND Act improves the entry and validation of State, local and tribal warrants in the NCIC database by authorizing $10 million for grants each fiscal year 2011 through 2015. It increases for States, local and Indian tribes the resources available for extraditing fugitives between States and tribal regions by authorizing $30 million for grants each fiscal year 2011 through 2015. The bill also encourage States, local and tribes to reduce the cost of extradition by using the U.S. Marshals Service's Justice Prisoner and Alien Transportation Service, JPATS, to transport fugitives back to the jurisdiction which issued the warrant and requires grant participants which seek renewal grants to provide detailed reports to ascertain whether State, local and tribal pretrial release programs are operating effectively. To make certain that funds are properly spent, the bill directs GAO to submit a statistical report to the House and Senate Judiciary Committees on felony warrants issued by State, local, and tribal governments and entered into the NCIC database, and on the apprehension and extradition of persons with active felony warrants. This important legislation is designed to facilitate State and local data entry into the NCIC database through grants, increase the extradition of fugitives travelling in interstate commerce and to ascertain whether pretrial release programs are operating effectively. The fugitive problem is national in scope, involves individuals travelling in interstate commerce, and requires Federal solutions. After the January 19, 2010, field hearing, on February 24, 2010, Senator Specter wrote to the Director of the U.S. Marshals Service, USMS, to advise him ``that Philadelphia has the highest violent crime rate in the United States among the ten largest cities and the highest felony fugitive rate in the nation,'' and therefore critically needed additional funding for the Eastern District of Pennsylvania's fugitive task force. On April 2, 2010, John F. Clark, the Director of the U.S. Marshals Service, responded to Senator Specter's letter and said that the agency would expand the Philadelphia regional office by at least 10 marshals and staff to ``work aggressively to address the fugitive problem in Philadelphia.'' As part of Senator Specter's continued efforts to address the Philadelphia fugitive crisis, he has made several program funding requests for fiscal year 2011 to support the USMS and its partners, including: $1.207 billion for the U.S. Marshals Service, increased funding for the Edward Byrne memorial justice grants, and $792 million for the COPS program. Additionally, Senator Specter has requested report language that would direct $20 million to be used to support the establishment of a Regional Fugitive Task Force in Philadelphia. On May 3, 2010, Senator Specter chaired the third and final Judiciary Crime Subcommittee hearing to bring leaders in the criminal justice system together to find innovative and cost effective solutions to improve the quality and efficiency of the criminal justice system in Philadelphia, as well as for similarly overburdened state criminal courts.xxi Lynne M. Abraham, former district attorney for Philadelphia, Justice Seamus McCaffery, Pennsylvania Supreme Court, Everett Gillison, deputy mayor for public safety for the city of Philadelphia, Ellen Greenlee, chief defender, Philadelphia, and Professor John Goldkamp, chair of the Criminal Justice Department at Temple University, testified. The hearing emphasized the need for all the key players--the courts, the prosecutors, the defenders and the city--to work in a collaborative fashion to find solutions to these complex and systemic problems. The subcommittee and witnesses explored the following ideas: Community based prosecutions and zone courts. Sending police officers to many different courtrooms is wasteful and inefficient. A simple solution is reorganizing the criminal courts along geographic lines so that judges are assigned to handle all cases from a particular police division. Zone courts are more efficient and lead to fewer dismissal of cases, fewer trial delays and provide more judicial economy and accountability. Improving computer systems for both the District Attorney's Office and the Defenders Office. This would expedite discovery and permit faster and more efficient administration of justice. Offices should be able to have networked case files and operate as a paperless office. This would require extensive capital investment. Institute new diversion programs for nonviolent and low risk offenders. Establish more specialty treatment courts, such as mental health courts, veterans courts xxii and re-entry courts, to reduce recidivism. Reform the bail system. Professor Goldkamp, an expert on Philadelphia's bail system, recommended improving the pre-trial release system to one which makes decisions about release and confinement based on the characteristics of the defendants, not by how much cash they can post. Risky defendants should be detained, with due-process protections, but those who do not need confinement to meet their obligations or those who do not pose that much risk, like most addicted defendants, should not be jailed. Drug addicted defendants should go to treatment; mentally ill defendants should be directed to appropriate support services. Find effective ways to address the anti-snitch culture, including public service announcements and community outreach. The Philadelphia Inquirer's ``Justice: Delayed, Dismissed, Denied'' series rightly identified and proved a number of the systemic failings in the Philadelphia criminal justice system which have contributed to Philadelphia having an unacceptably low conviction rate for violent crimes and an unacceptably high rate of fugitives. Many of these problems have been around for decades and over the years have only gotten worse. By using statistics from the Administrative Office of the Pennsylvania Courts and the U.S. Bureau of Justice Statistics, the Philadelphia Inquirer convincingly turned a harsh light on what many in the criminal justice system have known, and what many have chosen to ignore. Professor Goldkamp stated at the May 3, 2010, Senate field hearing, ``I think that opportunity comes in at a time of crisis and concern.'' But if the needed changes are not made, Professor Goldkamp said ``the Philadelphia court system risks being held up nationally as an example of a dysfunctional court system.'' xxiii Senator Specter noted at the final field hearing that the Philadelphia Inquirer's series was a ``motivating factor'' in his working to obtain Federal assistance to local and overburdened courts. Now is the time for change and Senator Specter--by holding three Senate field hearings, by seeking and obtaining funding for the U.S. Marshal's fugitive task force, and finally, by introducing and supporting key legislation to better protect State witnesses, to fund State witness protection programs, and to fund State fugitive recovery efforts and the entry of State warrants into the national warrant database--is working hard to make those changes.