Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Senator from Oklahoma for those comments. He may be interested to know that I have been advised that the nominee is the son of Kent Frizzell, who was a high school debater in Kansas in my era. I debated against Kent Frizzell. I also noted that the nominee was born in Wichita, KS, which is a good place to be born, because I was born there, too. It is sometimes the source of some levity. When I was one of the assistant counsels to the Warren Commission, a man named Frances W. Adams, a prominent Wall Street lawyer, noted on my resume that I was born in Wichita. He said: Where was your mother on her way to at the time? When I say the birth place of Greg Frizzell, the nominee, is Wichita, KS, I recollect my own birth place and recollect the connection I had with his father being my high school debating opponent many years ago. While I have the floor, I know the time has been reserved to talk about judges in just a few minutes. Having started on Gregory Kent Frizzell, I would like to make a few additional comments. Senator Leahy is due to be here in a few minutes to speak--about three nominees. Votes are scheduled to take place at 11:55. I would like to supplement what has been said about Gregory Kent Frizzell. He has an outstanding academic record. He graduated from Tulsa University in 1981 and the University of Michigan Law School in 1984. He was an Oklahoma Rhodes Scholar finalist in 1980. He has been rated unanimously ``well qualified'' by the American Bar Association. I believe there is no opposition to his nomination for U.S. District Judge for the Northern District of Oklahoma. I urge my colleagues to support him. I ask unanimous consent that his resume be printed in the Record.

Mr. SPECTER. Mr. President, further, I support the confirmation of Judge Lawrence Joseph O'Neill to be U.S. District Judge for the Eastern District of California. He, too, has an excellent academic record, with a bachelor's degree from the University of California, Berkeley, in 1973, an MBA from Golden Gate University in 1976, and a law degree from the University of California, Hastings College of Law. He has a distinguished professional record. The American Bar Association rated him unanimously ``well qualified.'' I ask unanimous consent that his resume be printed in the Record.

Mr. SPECTER. Mr. President, the third nominee up for a vote at 11:55 is Judge Valerie L. Baker. She is nominated for U.S. District Court for the Central District of California. Her academic record, as well, is outstanding: summa cum laude from the University of California, Santa Barbara in 1971, with a cum laude master's degree from the University of California, Santa Barbara in 1972, and with a law degree in 1975 from the UCLA School of Law. The American Bar Association unanimously rates Judge Baker ``well qualified.'' I ask unanimous consent that her resume be printed in the Record.

Mr. SPECTER. Mr. President, I urge my colleagues to vote for these three distinguished nominees. I thank Senator Leahy, the Chairman of the Judiciary Committee, for moving these nominations. It is very important. We have numerous judicial emergencies. We have other nominees awaiting action by the committee and by the full Senate. Senator Leahy is moving with dispatch, which is appreciated, and it is also appreciated that the majority leader has listed these three nominees for action this morning. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Senator from Oklahoma for those comments. He may be interested to know that I have been advised that the nominee is the son of Kent Frizzell, who was a high school debater in Kansas in my era. I debated against Kent Frizzell. I also noted that the nominee was born in Wichita, KS, which is a good place to be born, because I was born there, too. It is sometimes the source of some levity. When I was one of the assistant counsels to the Warren Commission, a man named Frances W. Adams, a prominent Wall Street lawyer, noted on my resume that I was born in Wichita. He said: Where was your mother on her way to at the time? When I say the birth place of Greg Frizzell, the nominee, is Wichita, KS, I recollect my own birth place and recollect the connection I had with his father being my high school debating opponent many years ago. While I have the floor, I know the time has been reserved to talk about judges in just a few minutes. Having started on Gregory Kent Frizzell, I would like to make a few additional comments. Senator Leahy is due to be here in a few minutes to speak--about three nominees. Votes are scheduled to take place at 11:55. I would like to supplement what has been said about Gregory Kent Frizzell. He has an outstanding academic record. He graduated from Tulsa University in 1981 and the University of Michigan Law School in 1984. He was an Oklahoma Rhodes Scholar finalist in 1980. He has been rated unanimously ``well qualified'' by the American Bar Association. I believe there is no opposition to his nomination for U.S. District Judge for the Northern District of Oklahoma. I urge my colleagues to support him. I ask unanimous consent that his resume be printed in the Record.

Mr. SPECTER. Mr. President, further, I support the confirmation of Judge Lawrence Joseph O'Neill to be U.S. District Judge for the Eastern District of California. He, too, has an excellent academic record, with a bachelor's degree from the University of California, Berkeley, in 1973, an MBA from Golden Gate University in 1976, and a law degree from the University of California, Hastings College of Law. He has a distinguished professional record. The American Bar Association rated him unanimously ``well qualified.'' I ask unanimous consent that his resume be printed in the Record.

Mr. SPECTER. Mr. President, the third nominee up for a vote at 11:55 is Judge Valerie L. Baker. She is nominated for U.S. District Court for the Central District of California. Her academic record, as well, is outstanding: summa cum laude from the University of California, Santa Barbara in 1971, with a cum laude master's degree from the University of California, Santa Barbara in 1972, and with a law degree in 1975 from the UCLA School of Law. The American Bar Association unanimously rates Judge Baker ``well qualified.'' I ask unanimous consent that her resume be printed in the Record.

Mr. SPECTER. Mr. President, I urge my colleagues to vote for these three distinguished nominees. I thank Senator Leahy, the Chairman of the Judiciary Committee, for moving these nominations. It is very important. We have numerous judicial emergencies. We have other nominees awaiting action by the committee and by the full Senate. Senator Leahy is moving with dispatch, which is appreciated, and it is also appreciated that the majority leader has listed these three nominees for action this morning. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. We yield back the remaining time.

Mr. SPECTER

Mr. SPECTER. We yield back the remaining time.

Mr. SPECTER

Mr. SPECTER. Mr. President, a brief comment on Gregory Frizzell. He was born in Wichita, KS, which is a great note of distinction, being it is my birthplace. I debated against his father in high school. So I have a little more enthusiasm in asking my colleagues to support his confirmation. Mr. President, I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, a brief comment on Gregory Frizzell. He was born in Wichita, KS, which is a great note of distinction, being it is my birthplace. I debated against his father in high school. So I have a little more enthusiasm in asking my colleagues to support his confirmation. Mr. President, I yield the floor.

Mr. SPECTER

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 join Senator Leahy in the acknowledgment that the Attorney General will be turning over to Senator Leahy and me, in our capacities as chairman and ranking member of the Judiciary Committee, the applications which were filed by the Department of Justice for the change in the terrorist surveillance program and the court orders issued by the Foreign Intelligence Surveillance Court establishing a new line of judicial review for that surveillance program. Back on December 16, 2005, the New York Times broke a major story disclosing that there had been a secret wiretapping program, electronic surveillance without the customary judicial review. The customary approach is to have a law enforcement official apply for a warrant showing an affidavit of probable cause to justify a search and seizure for a wiretap which is a facet of the search and seizure, and that disclosure back on December 16 was quite a revelation. As a matter of fact, we were in the midst of debating the PATRIOT Act at that time, trying to get that through on reauthorization, and it was a major bone of contention, with some Senators saying they had been disposed to vote for the reauthorization of the PATRIOT Act and wouldn't do so now with the disclosure of that program. Through a good bit of last year, the Judiciary Committee worked on efforts, through legislation, to have judicial review of that program, and, in fact, at one point an agreement was reached with the White House on a legislative package to move forward. Ultimately, that legislative effort was unsuccessful and the program continued to have these wiretaps without judicial approval. Then, on January 17--earlier this month--the Attorney General announced there had been a change in programming and there would be application made to the Foreign Intelligence Surveillance Board under procedures which the Department of Justice had established with the Foreign Intelligence Surveillance Court. I received a lengthy briefing on the nature of the program, but it fell short of the necessary disclosure because I did not know what the applications, the affidavits provided, nor did I know what the court had said. And there was an issue as to whether there was a blanket approval for the program or whether there were individualized warrants, and in order to meet the traditional safeguards for establishment of probable cause, there would have to be individual warrants. Senator Leahy and I then pressed the Attorney General for access to these documents which would give us a fuller understanding of what was happening. I was pleased to learn earlier today that the Attorney General has consented to make those disclosures to Senator Leahy and myself, and we will be reviewing those documents. They will not be made public. Until I have had a chance to see them, I wouldn't have any judgment as to whether they ought to be made public. My own view is there ought to be the maximum disclosure to the public consistent with national security procedures. The Attorney General has represented that there is classified information here which ought not to be made public, and I will reserve judgment until I have had an opportunity to see those documents. I know Senator Leahy was on the floor a little earlier today, within the past half hour or so, and I wanted to join him in thanking the President for this action. We have seen an expansion of Executive authority which I have spoken about on this Senate floor in a number of situations with the signing statements, where the President signs legislation but expresses reservations. There is a real question in my mind as to the constitutionality of that. The Constitution provides that Congress passes legislation and the President either signs it or vetoes it. I have introduced legislation to give Congress standing to challenge those signing statements or limitations therein in court and other examples of the expansion of Executive authority. So I think this is a significant step forward, and I commend the President and the Department of Justice for taking this stand. I am going to reserve judgment on the program itself, obviously, until I have had a chance to review it. But I did want to acquaint my colleagues in the Senate with what is happening and acquaint the American people too because there has been considerable concern about the protection of civil rights, and obviously our war on terrorism has to be fought in a vigorous and tenacious manner, because it is a real threat to our national security and the safety of the American people, but at the same time have the balancing of protecting civil liberties. This is a significant step forward, and I am anxious to see the details to be able to report further on it. I thank the Chair, and in the absence of any other Senators seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I would like to begin by thanking my distinguished colleague, Senator Grassley, for his outstanding work on the issues which he has just addressed. Senator Grassley and I have a long record of working together. We were elected together in November 1980 with the election of Ronald Reagan. There were 16 members of the incoming class of Republican Senators at that time. Two Democrats were elected. In the intervening years, Senator Grassley and I have become the sole survivors, and we have done a great deal of work together. We sit together on the Judiciary Committee, and Senator Grassley has had a very distinguished record as chairman of the Senate Finance Committee during the 109th Congress, and I chaired the Judiciary Committee during the 109th Congress. We are making a presentation today of interim findings on the investigation into potential abuse of authority at the Securities and Exchange Commission. I join Senator Grassley in commending the Chairman of the SEC, Christopher Cox, for his cooperation, and I also join Senator Grassley in urging Chairman Cox and the SEC to do more. The oversight which our two committees undertook constituted a review of over 9,000 pages of documents and the interviewing of 19 witnesses over the course of 24 interviews. The Judiciary Committee, on which we both serve, held a series of three public hearings regarding this matter, most recently on December 5, 2006, when the committee heard detailed sworn testimony from current and former SEC employees involved in the so-called Pequot investigation. Based upon our review of the evidence, we have serious concerns, which are documented in a lengthy report, which we will make a part of the record, plus supplemental documents. Our investigation has raised concerns about, first, the SEC's mishandling of the Pequot investigation before, during, and after the firing of Mr. Gary Aguirre; secondly, the circumstances under which Mr. Aguirre was terminated; and third, the manner in which the SEC's Inspector General's Office handled Mr. Aguirre's allegations after he was fired. Viewing these concerns as a whole, we believe a very troubling picture evolves. At best, the picture shows extraordinarily lax enforcement by the SEC, and it may even indicate a coverup by the SEC. We are concerned, first of all, as detailed in this report, that the SEC failed to act on the GE/Heller trades for years. We are concerned about the suggestions of political power which was present in the investigation, which has all of the earmarks of a possible obstruction of justice. There is sworn testimony by Mr. Gary Aguirre that he was told in a face-to-face meeting with his immediate supervisor, Branch Chief Robert Hanson, that he could not take the testimony of Mr. John Mack, who was thought to have leaked confidential information. Mr. Aguirre testified that Mr. Hanson refused to allow the taking of testimony, as Mr. Aguirre pointed out, because of Mr. Mack's ``powerful political contacts.'' Now, Mr. Hanson denied to the SEC inspector general and to the committee that he ever said that, but we have contemporaneous e-mails, for example, where Mr. Hanson admitted to a very similar statement when he wrote to Mr. Aguirre on August 24, 2005, ``Most importantly, the political clout I mentioned to you was a reason to keep Paul,'' referring to a man named Paul Berger, ``and possibly Linda,'' referring to a woman named Linda Thomsen, ``in the loop on the testimony.'' Now, that is conclusive proof of the political clout or at least what Mr. Hanson thought was political clout when the SEC made a decision not to permit the taking of key testimony, the testimony of Mr. Mack. Mr. Hanson submitted a written statement to the committee concluding that it was ``highly suspect and illogical'' to link Mr. Mack as the tipper, but in his prior writings he said, in written form, ``Mack is another bad guy.'' The rationale used by the SEC officials who denied Mr. Aguirre's request to take the testimony of Mr. Mack was that they wanted to get ``their ducks in a row.'' But the overwhelming evidence in the matter showed that the testimony should have been taken at a much earlier stage. There is no problem with taking testimony again if necessary at a later stage. A key SEC investigator, Mr. Hilton Foster, with knowledge of the Pequot matter, said, ``As the SEC expert on insider trading, if people had asked me, `When do you take his testimony,' I would have said take it yesterday.'' Mr. Joseph Cella, Chief of the SEC's Market Surveillance Commission, told committee investigators, ``it seemed to me that it was a reasonable thing to do to bring Mack in and have him testify,'' and ``in my mind there was no down side.'' Mr. Mack's testimony was taken 5 days after the statute of limitations expired. But let me point out at this juncture that even though the statute of limitations has expired, there is injunctive relief and other action that can yet be taken by the SEC. The problems with the Pequot investigation are amplified by the suspect termination of Mr. Aguirre. On June 1, 2005, in a performance plan and evaluation, Mr. Aguirre was given an acceptable rating, and Mr. Hanson, on June 29, 2005, noted Mr. Aguirre's ``unmatched dedication'' to the Pequot investigation and ``contributions of high quality.'' These evaluations were submitted to the SEC's Compensation Committee, which later approved Mr. Hanson's recommendation on July 18. Despite these favorable reviews, Aguirre's supervisors wrote a so- called supplemental evaluation on August 1, and this reevaluation on August 1 occurred 5 days after Mr. Aguirre sent supervisor Berger an e- mail saying that he believed the Pequot investigation was being halted because of Mr. Mack's political power. There was an investigation by the inspector general of the SEC, and in my years in the Senate and hearing many inspectors general testify, I can't recall hearing an inspector general who said less, did less, and was more thoroughly inadequate in the investigation. For example, the inspector general's staff said, ``we don't second guess management's decisions. We don't second guess why employees are terminated.'' Well, that is precisely the purpose of having an inspector general. The purpose of having an inspector general is to review those kinds of decisions. The inspector general testified that he was given advice by the Department of Justice, which made absolutely no sense. This appears in some detail in the record. Then the inspector general initiated an attempt to take what was really punitive action against Mr. Aguirre by seeking enforcement of a subpoena for documents which were involving Mr. Aguirre's communications with Congress. Now, how can an individual communicate, talk to an oversight committee, such as the Judiciary Committee or the Finance Committee, if those communications are going to be subject to a subpoena by the SEC, by the inspector general? It is just preposterous. We have constitutional oversight responsibilities, and we obviously cannot conduct those responsibilities if the information we glean is going to be subject to somebody else's review. The subpoena wasn't pursued, but the lack of judgment--and it is hard to find a strong enough word which is not insensitive to describe the inspector general's conduct in trying to subpoena the records of the Senate Judiciary Committee and the Senate Finance Committee. It just made absolutely no sense. We hope that the SEC will reopen its investigation even though the statute of limitations has run on criminal penalties. It has run because of the inaction of the SEC waiting so long to start the investigation, then not taking Mr. Mack's testimony until 5 days after the statute of limitations had expired. Notwithstanding that, there are other remedies, such as disgorgement, which still may be pursued. The oversight function of Congress, as we all know, is very important. Pursuing an investigation of this sort is highly technical, but we have done so, so far, in a preliminary manner. We believe this matter is of sufficient importance so that Senator Grassley and I have come to the floor jointly today to make a statement. On behalf of Senator Grassley and myself, I ask unanimous consent that the full text of the interim findings on the investigation of potential abuse of authority of the Securities and Exchange Commission be printed in the Record, together with extensive documentation which supports the findings. Again, we acknowledge the cooperation of Chairman Cox and the SEC, and we ask that further investigation be undertaken there. It is a matter of continuing oversight concern to Senator Grassley and myself and the respective committees where we now serve as ranking members. Mr. President, I ask Senator Grassley, what did I leave out?

Mr. SPECTER

Mr. SPECTER. Madam President, I thank the majority leader and Chairman Leahy for bringing up the nomination of Philip Gutierrez. He has an outstanding academic record. His bachelor's degree is from the University of Notre Dame. He has a law degree from UCLA. He has been rated ``well qualified'' by the American Bar Association. Judge Gutierrez was nominated during the last Congress and his nomination reported out of the Judiciary Committee with a favorable recommendation on September 21, 2006. The Senate, however, did not act on his nomination prior to adjournment of the 109th Congress. President Bush renominated Judge Gutierrez in the 110th Congress and his nomination reported out of the Judiciary Committee on January 25, 2006. Judge Gutierrez received his BA degree from the University of Notre Dame in 1981 and a JD from the UCLA School of Law in 1984. Judge Gutierrez's substantial experience both in private practice and on the California Superior Court have prepared him to serve on the Federal bench. He began his legal career as an associate with the Los Angeles firm Wolf, Pocrass & Reyes from 1984 to 1986 and then worked as an associate with Kern & Wooley from 1986 to 1988. At both firms, Judge Gutierrez worked on civil tort liability litigation. In 1988, Judge Gutierrez joined the law firm of Cotkin & Collins in Santa Ana as managing partner. At Cotkin, he focused his practice on business litigation with an emphasis in professional liability and insurance coverage. In 1997, Judge Gutierrez was appointed to serve on the Whittier Municipal Court where he presided over misdemeanors, felony arraignments, and civil matters. In 2000, he was elevated to the Los Angeles County Superior Court where he currently sits in the Pomona division. He presides over a range of significant civil and criminal matters, including felony cases. Active in judicial governance and education, Judge Gutierrez currently serves on the Los Angeles County Superior Court Executive Committee and the California Judges Association's Committee on Judicial Ethics, of which he is a former chair. He serves on several committees of the California Center for Judicial Education and Research. The American Bar Association has rated Judge Gutierrez unanimously ``well qualified.'' Madam President, I know the Members on the Senate floor would like to have a detailed description of his resume, but they will have to read it in the Congressional Record. I ask unanimous consent it be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, Senator Dorgan and I have arranged to switch times. He graciously consented to that. I ask unanimous consent that I may proceed for the 30-minute special order that was already announced and that Senator Dorgan be recognized for 45 minutes when my time is concluded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment about S. 344, which provides for the televising of Supreme Court proceedings. This bill is cosponsored by Senator Grassley, Senator Durbin, Senator Schumer, Senator Feingold, and, with unanimous consent Senator Cornyn--a bipartisan representation. It is identical with legislation introduced in the last Congress after having been voted out of committee, and was voted out of committee on a 12-to-6 vote. It was previously introduced in 2005. It had a hearing on November 9 of 2005 and was reported out of committee on March 30 of 2006. The essential provision is to require televising proceedings at the Supreme Court of the United States unless the Court determines on an individual basis that there would be an inappropriate occasion and a violation of the due process rights of the parties. The thrust of this legislation is to bring public attention and understanding of how the Supreme Court of the United States functions, because it is the ultimate decisionmaker on so many--virtually all of the cutting edge questions of our day. The Supreme Court of the United States made the decision in Bush v. Gore, essentially deciding who would be President of the United States. The Supreme Court decides cases on the death penalty, as to who will die. It decides by 5-to-4 decisions so many vital cases, including partial-birth or late-term abortion, deciding who will live. It decides the question of who will be elected, controlling the constitutional decision on campaign contributions. It decides the constitutionality-- again, and all of the cases I mentioned are 5 to 4--on school prayer, on school vouchers, on whether the Ten Commandments may be publicly displayed, on whether affirmative action will be permitted, on whether eminent domain will be allowed--the taking of private property for governmental purposes. The Supreme Court of the United States decides the power of the President as illustrated by Hamdan v. Rumsfeld--that the President does not have a blank check and that the President is not a monarch. The Supreme Court of the United States, again in a series of 5-to-4 decisions, has decided what is the power of Congress, declaring in U.S. v. Morrison the legislation to protect women against violence unconstitutional because the Court questioned our ``method of reasoning,'' raising a fundamental question as to where is the superiority of the Court's method of reasoning over that of the Congress. But that kind of decision, simply stated, is not understood. Or the Supreme Court of the United States dealing with the Americans With Disabilities Act, making two decisions which are indistinguishable, upholding the statute on a paraplegic crawling into the courthouse in Tennessee and striking down the constitutionality of the statute when dealing with employment discrimination. They did so on a manufactured test of congruence and proportionality, which is literally picked out of thin air. Under our Constitution, I respect the standing of the Supreme Court of the United States to be the final arbiter and to make the final decisions. But it is, I think, fundamental that the Court's work, the Court's operation ought to be more broadly understood. That can be achieved by television. Just as these proceedings are televised on C- SPAN, just as the House of Representatives is televised on C-SPAN, so, too, could the Supreme Court be televised on an offer made by C-SPAN to have a separate channel for Supreme Court oral arguments. There are many opportunities for the Court to receive this kind of coverage, to inform the American people about what is going on so that the American people can participate in a meaningful way as to whether the Court is functioning as a super-legislature--which it ought not to do, that being entrusted to the Congress and State legislatures, with the Court's responsibility being to interpret the law. It should be noted that the individual Justices of the Supreme Court have already been extensively televised. Chief Justice Roberts and Justice Stevens were on ``Prime Time'' on ABC TV. Justice Ruth Bader Ginsburg was on CBS with Mike Wallace. Justice Breyer was on ``FOX News'' Sunday. Justice Scalia and Justice Breyer had an extensive debate last December, which is available for viewing on the Web--and in television archives. So there has been very extensive participation by Court members, which totally undercuts one of the arguments, that the notoriety would imperil the security of Supreme Court Justices. It is also worth noting that a number of the Justices have stated support for televising the Supreme Court. For example, Justice Stevens, in an article by Henry Weinstein on July 14, 1989, said he supported cameras in the Supreme Court and told the annual Ninth Circuit Judicial Conference at about the same time that, ``In my view, it is worth a try.'' Justice Stevens has been quoted recently stating his favorable disposition to televising the Supreme Court. Justice Breyer, during his confirmation hearings in 1994, indicated support for televising Supreme Court proceedings. He has since equivocated, but has also noted that it would be a wonderful teaching device. In a December 13, 2006 article by David Pereira, Justice Scalia said he favored cameras in the Supreme Court to show the public that a majority of the caseload involves dull stuff. In December of 2000, an article by Marjorie Cohn noted Justice Ruth Bader Ginsburg's support of camera coverage, so long as it is gavel to gavel--which can be arranged. Justice Alito, in his Senate confirmation hearings last year, said that as a member of the Third Circuit Court of Appeals he voted to admit cameras. He added that it would be presumptuous of him to state a final position until he had consulted with his colleagues, if confirmed. But at a minimum, he promised to keep an open mind, noting that he had favored television in the Third Circuit Court of Appeals. Justice Kennedy, according to a September 10, 1990, article by James Rubin, told a group of visiting high school students that cameras in the Court were ``inevitable,'' as he put it. He has since equivocated, stating that if any of his colleagues raise serious objections, he would be reluctant to see the Supreme Court televised. Chief Justice Roberts said in his confirmation hearings that he would keep an open mind. Justice Thomas has opposed cameras. Justice David Souter has opposed televising the Supreme Court. Justice Souter has been the most outspoken opponent of televising the Supreme Court, saying if cameras rolled into the Supreme Court, they would roll over his--as he put it-- over his dead body--a rather colorful statement. But there has been, as noted, considerable sentiment by quite a number of the Justices as to their personal views expressing favorable disposition toward televising the Supreme Court. The question inevitably arises as to whether Congress has the authority to require televising Supreme Court proceedings, and I submit there is ample authority on Congress's generalized control over administrative matters in the Court. For example, it is the Congress which decides how many Justices there will be on the Court. It is remembered that President Roosevelt, in the mid to late 1930s, proposed a so-called ``packing of the Court'' plan to raise the number to 15. But that is a congressional judgment. The Congress decides when the Supreme Court will begin its term: on the first Monday of every October. The Congress decides what number will constitute a quorum of the Supreme Court: six. The Congress of the United States has instituted timelines that are required to be observed by the Supreme Court when determining timeliness in habeas corpus cases. So there is ample authority for the proposition that televising the Supreme Court would be constitutional. There is an article which is due for publication in May 2007 by Associate Professor Bruce Peabody of the political science department of Fairleigh Dickinson University, and in that article, Professor Peabody makes a strong analysis that congressional action to televise the Supreme Court would be constitutional. Also, in that article Professor Peabody refers at length to the legislation which I introduced in 2005 and says that it would be constitutional and observes that: A case could be made for reform giving rise to more wide- ranging and creative thinking of the role and status of the judiciary if the Supreme Court was, in fact, televised. He further notes that: Televising the Supreme Court could stimulate a more general discussion about whether other reforms of the court might be in order. He notes that: The so-called Specter bill would be meaningful in giving wider play to a set of conversations that have long been coursing through the academy about the relationship between the court and the Congress. The Supreme Court itself, in the 1980 decision in Richmond Newspapers v. Virginia, implicitly recognized, perhaps even sanctioned, televising the Court because in that case, the Supreme Court noted that a public trial belongs not only to the accused but to the public and the press as well; and that people acquire information on Court proceedings chiefly through the print and electronic media. But we know as a factual matter that the electronic media, television, is the basic way of best informing the public about what the Supreme Court does. There was enormous public interest in the case of Bush v. Gore argued in the Supreme Court in December of 2000 after the challenge had been made to the calculation of the electoral votes from the State of Florida and whether the so-called chads suggested or showed that Vice President Gore was the rightful claimant for those electoral votes or whether then-Governor Bush was the rightful claimant. The streets in front of the Supreme Court chambers across the green from the Senate Chamber were filled with television trucks. At that time, Senator Biden and I wrote to Chief Justice Rehnquist urging that the proceedings be televised and got back a prompt reply in the negative. But at least on that day the Supreme Court did release an audiotape when the proceedings were over, and the Supreme Court has made available virtually contemporaneous audio tapes since. But I suggest the audio tapes do not fill the bill. They do not have the audience. They do not have the impact. They do not convey the forcefulness that televising the Supreme Court would. There has been considerable commentary lately about the Court's workload and the Court's caseload. Chief Justice Roberts, for example, noted that the Justices: Hear about half the number of cases they did 25 years ago. And, he remarked that from his vantage point, outside the Court: They could contribute more to the clarity and uniformity of the law by taking more cases. They have a very light backlog. In the 2005 term, only 87 cases were argued and 69 signed opinions were issued, which is a decrease from prior years. They have left many of the splits in the circuits undecided. Former Senator DeWine, when serving on the Judiciary Committee, asked Justice Alito about the unresolved authority at the circuit level. Now Justice Alito characterized that as ``undesirable.'' But that happens because of the limited number of cases which the Supreme Court takes. There has also been concern, as noted in an article by Stuart Taylor and Ben Wittes captioned, ``Of Clerks And Perks,'' that the four clerks per Justice constitute an undesirable allocation of resources, and the Taylor-Wittes article cites the Justice's extensive extracurricular traveling, speaking, and writing, in addition to their summer recesses and the vastly reduced docket as evidence that something needs to be done to spur the Court into taking more cases. If the Court were to be televised, there would be more focus on what the Court is doing. That focus can be given without television, but once the Supreme Court becomes the center of attraction, the center of attention, articles such as that written by Taylor and Wittes would have much more currency. The commentators have also raised a question about the pooling of the applications for certiorari. There were, in the 2005 term, some 8,521 filers. Most of those are petitions for certiorari. That is the fancy Latin word for whether the Court will grant process to hear the case from the lower courts. As we see, the Court acts on a very small number of those cases. Only 87 cases were argued that year in a term when more than 8,500 filings were recorded, most of those constituting cases which could have been heard. And, the Supreme Court has adopted a practice of the so-called ``cert pool,'' a process used by eight of the nine Justices. Only Justice Stevens maintains a practice of reviewing the cert petitions himself on an individual basis, of course, assisted by his clerks. But when the Court is charged with the responsibility of deciding which cases to hear, it is my view that it is very problematic and, in my judgment, inappropriate for the Justices not to be giving individualized attention, at least through their clerks, and not having a cert pool where eight of the Justices have delegated the job of deciding which cases are sufficiently important to hear to a pool. We do not know the inner workings of the pool, but I believe it is fair and safe to infer that the judgments are made by clerks. Precisely what the level of reference and what the level of consultation with the Justices is we do not know, but when an application is made to the Supreme Court of the United States to hear a case, it is my view that there ought to be individualized consideration. That also appeared to be the view of now Chief Justice John Roberts, who said in a 1997 speech, according to a September 20, 2000, article in the Legal Times by reporter Tony Mauro where then-private practitioner John Roberts said he ``found the pool disquieting, in that it made clerks a bit too significant in determining the Court's docket.'' I would suggest that is an understatement, to give that kind of power to the clerks and, beyond that, to give that kind of power to the clerks in a pool, where the individual Justices do not even make the delegation to their own clerks with whatever review they would then utilize but make that a delegation to a cert pool. There have been many scholarly statements about the desirability of having greater oversight on what happens in the Supreme Court. Chief Justice William Howard Taft, who was the 10th Supreme Court Chief Justice and the 27th President of the United States, said that review and public scrutiny was the best way to keep the judges on their toes. And Justice Felix Frankfurter said that he longed for the day when the Supreme Court would receive as much attention as the World Series because the status of the Supreme Court depended upon its reputation with the people. These are the exact words of Chief Justice William Howard Taft: Nothing tends more to render judges careful in their decision and anxiously solicitous to do exact justice than the consciousness that every act of theirs is subject to the intelligent scrutiny of their fellow men and to candid criticism. Justice Felix Frankfurter's exact words were: If the news media would cover the Supreme Court as thoroughly as it did the World Series, it would be very important since ``public confidence in the judiciary hinges on the public perception of it.'' We have a continuing dialogue and a continuing discussion as to the role of the Supreme Court in our society. We have the cutting edge questions consistently coming to the Court. We have them deciding the issues of who will live, who will die, what will be the status of prayer in the schools, what will be the status of our election laws, and through the vagaries of due process of law and equal protection, there are many standards which the Court can adopt. I was candidly surprised, in reviewing the recent Supreme Court decisions for the confirmation hearings on Chief Justice Roberts and Justice Alito, to find how far the Court had gone in striking down the power of Congress. It was 11 years between the confirmation proceeding on Justice Breyer and the confirmation proceeding on Chief Justice Roberts. With our workload here, it is not possible, even with responsibilities on the Judiciary Committee, even with responsibilities as chairman of the Judiciary Committee, to keep up with the Supreme Court opinions. When I read United States v. Morrison, where the Supreme Court struck down the legislation protecting women against violence on a 5-to-4 decision because Chief Justice Rehnquist questioned our ``method of reasoning,'' I wondered what kind of a transformation there was when you leave the Senate Chamber, where our columns are aligned exactly with the Supreme Court columns across the green, what kind of a transformation there was with method of reasoning that there is such superior status when going to the Court. Certainly I have noted no complaint about Senators' method of reasoning when we confirm Supreme Court Justices. Then we picked up the Americans with Disabilities Act. We had two cases--one involving Alabama which involved employment discrimination and one involving Tennessee which involved access by a paraplegic to the courtroom--dealing with exactly the same records. In the Alabama case, the Supreme Court declared 5 to 4 that the act of Congress was unconstitutional. In the Tennessee case, exactly on the same record, they decided the act was constitutional. What standard did they use? They adopted a standard on a 1997 Supreme Court decision in a case called Boerne. In that case, the Supreme Court decided they would render a constitutional judgment in a context where Congress had legislated under article V of the 14th amendment to preserve due process of law where the challenge was made by the State that the States were immune under the 11th amendment. The Supreme Court decided it would impose a test of whether the statute was ``congruent and proportional.'' This standard had never been heard in jurisprudence before that time, ``congruent and proportional.'' I defy anyone to say what those words mean in a standard which can be applied in a way which can be predicted by lawyers and understood by State legislators and understood by clients. In a dissenting opinion, Justice Scalia chastised the Court for being, in effect, the taskmaster of the Congress, to see if the Congress had done its homework, whereas in prior cases the adequacy of the record was determined by a substantial record and the Court would defer to the judgment of Congress, which established, through lengthy hearings and proceedings, a very extensive record. In talking to my colleagues, those decisions by the Supreme Court undercutting congressional power were not known. Then we have the Supreme Court being the final arbiter on what happens on Executive power, what happens at Guantanamo, what is the responsibility of the President of the United States on military commissions, what is the responsibility under the Geneva Conventions. Here again, I respect the Supreme Court's decisions, respect their role as the final arbiter, but say that there ought to be an understanding by the public. It may be that there will never be a case which has more impact on the working of Government than the decision as to whether the Florida electoral votes would be counted for George Bush or for Albert Gore in the famous case of Bush v. Gore. A prior version of this legislation came out of committee last year on a bipartisan 12-to-6 vote. It has very substantial cosponsorship. I urge my colleagues to consider it carefully. I urge the distinguished majority leader to look for a spot to bring such legislation to the Senate. There is companion legislation which Senator Grassley is offering which gives the courts--the Supreme Court, courts of appeals, trial courts--the discretion to have television. My legislation, S. 344, is more targeted. It has a requirement as to the Supreme Court televising its proceedings unless there is some due-process violation which is considered on a case-by-case basis. When the article comes out by Professor Bruce Peabody in the University of Notre Dame Law Journal, I commend it to everyone's attention. I have advance text, have cited some of Professor Peabody's conclusions on his decision that the legislation has very important public policy benefits and, as he analyzes it, is constitutional. I ask unanimous consent that the full text of the written statement be printed in the Congressional Record as if recited, and I ask that prior to the introduction of that prepared statement, my statement appear, that the comments I have made up until now have been a summary of that more extensive statement, an extemporaneous summary, and the full statement follows. Sometimes people reading the Congressional Record wonder why there is so much repetition, and I think a word of explanation that the initial statement is a summary and the formal statement is added would explain why the repetition exists. I ask all of this explanation be printed in the Record. Finally, I ask that Senator Cornyn be included as a cosponsor.

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to support legislation with my distinguished colleague, Senator Casey, that will honor the 150th Anniversary of the Academy of Music of Philadelphia, PA. The Academy of Music has served as a venue for the performing arts, ceremonial events, Presidential conventions and historical occasions since its opening in 1857. The Academy is the oldest grand opera house in the United States still used for its original purpose, and was designated as a National Historic Landmark in 1963. The Academy served as the main concert hall for the Philadelphia Orchestra for more than a century. The Orchestra purchased the Academy in 1957, and continues to perform there each year for the Academy's anniversary. Additionally, a host of legendary artists including Maria Callas, Joan Sutherland, George Gershwin, Anna Pavlova, Igor Stravinsky and Luciano Pavarotti have performed at this important venue. The Academy of Music has also been the site of several significant and historic cultural events. Alexander Graham Bell conducted a demonstration of the telephone in 1877, Leopold Stokowski and the Philadelphia Orchestra performed the first ever concert in stereophonic sound there in 1933, and in 1939, the Philadelphia Orchestra recorded the soundtrack to Walt Disney's classic film, Fantasia, at the Academy. The Academy's history extends further than the opulent interior of the main hall and the magnificent performances that have graced its stage. An elegant restaurant was constructed in the basement in 1857 for opera-goers and arts patrons. During World War II, the restaurant was converted into a canteen that hosted 2.5 million service men and women between the years of 1942 and 1945 who enjoyed performances by Abbott and Costello, Duke Ellington, Lynn Fontanne and Frank Sinatra. The Academy of Music continues to be the Philadelphia area's primary venue for the performing arts, hosting major Broadway productions, operatic performances and traveling dance and theater companies. It is with great pleasure that Senator Casey and I present this resolution honoring the Academy of Music's 150th Anniversary, and pay homage to an institution that has played a significant role in Philadelphia's vibrant arts community. I ask my colleagues to join me in recognizing the Academy of Music.

Mr. SPECTER

Mr. SPECTER. Madam President, I seek recognition to speak in support of S.2, the Fair Minimum Wage Act of 2007, of which I am a cosponsor, to increase the Federal minimum wage to $7.25 per hour by 2009. The last time Congress voted to raise the minimum wage was in 1996, raising it from $4.25 to $4.75 to eventually $5.15 in 1997. History clearly demonstrates that raising the minimum wage has no adverse impact on jobs, employment, or inflation. In the 4 years after the last minimum wage increase passed, the economy experienced its strongest growth in over three decades. More than 11 million new jobs were added, at the pace of 232,000 per month. We need to ensure that hard working Americans that are paid the minimum wage are given an increase because there has been no increase for almost 10 years, while cost-of-living adjustments have been provided to others. In my home State of Pennsylvania, the State minimum wage was increased from $5.15 per hour to $6.25 per hour on January 1, 2007. On July 1, 2007, the State minimum wage will increase to $7.15 per hour. Many States surrounding the Commonwealth of Pennsylvania, including New York, New Jersey, Maryland, and Ohio, have already increased their State minimum wage above the Federal minimum wage with a State wage rate of $7.93 per hour. With 29 states, including Pennsylvania, passing laws to increase their state minimum wage above the Federal wage, it is crucial for this body and this Congress to pass legislation to increase the Federal wage rate to have consistency across the entire United States. The official poverty rate in the United States increased from a 26- year low of 11.3 percent in 2000 to 12.6 percent in 2005, including 12.9 million children. The nonprofit, nonpartisan think tank, the Economic Policy Institute, EPI, estimates that 11 percent of the work force, or about 14.9 million workers, would receive an increase in their hourly wages if the Federal minimum wage was increased to $7.25 by 2008. Also, 59 percent of those workers likely to benefit are women and 9 percent are single parents. Further, evidence from an analysis of the 1996-97 minimum wage increase shows that the average minimum wage worker brings home more than half, 54 percent, of his or her family's weekly earnings. Increasing the Federal wage would enable a working family to afford almost 2 more years of childcare, full tuition for a community college degree, and many other staples for a healthy standard of living. Unfortunately, the current minimum wage fails to meet these standards. Congress needs to act. The longer there is inaction, the more behind minimum wage earners get in paying expenses just to survive. Since taking office in 1981, I have consistently supported increasing the Federal minimum wage. I understand the importance of ensuring that the minimum wage keeps better pace with inflation. The real value of the minimum wage has declined steadily in recent years and it is long past due for an increase. America's working families work hard every day, sometimes at two or three jobs, just to make ends meet. We need to pass this legislation to give these families leverage to compensate for the increased costs of living over time. The U.S. Department of Labor's Bureau of Labor Statistics defines inflation as ``the overall general upward price movement of goods and services in an economy.'' The Bureau compiles statistics, called the Consumer Price Index, CPI, to measure the rate of inflation on a yearly December to December basis. CPI is measured by utilizing prices of a ``market basket'' of goods and services purchased by an urban family, in which a market basket is individual items weighted by how much the urban family spent on those same items in a base year period--currently 1982-1984. By any measure, the current minimum wage does not have the same buying power as it did in 1997, the last time the Federal minimum wage was increased. According to the Department of Labor, the rate of inflation from 1997 at 1.7 percent has increased at least 2.7 times to 4.7 percent in 2006. While the price of items has increased almost three times what they had cost in 1997, America's working families who depend on the Federal minimum wage have not seen any increase at all in the wages they take home. The Congressional Research Service of the Library of Congress has done nonpartisan research regarding the Federal minimum wage. They have found that those who earned below $7.25 an hour in 2005 were more than likely to have been women, 7 out of 11 million, of Hispanic origin, young, i.e., age 16-14; over fifty percent, or old, i.e. age 65 and above; 3.6 percent, lacking a high school degree, 38.1 percent, working part-time, i.e. less than 35 hours a week; 35.1 percent, and not represented by a labor union, 16.7 percent. Continuing, the report states that the families of these workers were more than likely than other families in 2005 to have been poor, receiving welfare, and lacking health insurance. As a frame of reference, in the private sector in 2005, the average wage of nonmanagement employees was $16.11 an hour according to the Bureau of Labor Statistics survey of employers. While I do support increasing the Federal minimum wage, I am very much concerned about the impact on small businesses. In my travels throughout Pennsylvania, I have heard from many small business owners about the unfairness in our tax laws and the burden placed upon them in comparison to large corporations. These complaints have been coupled by minimum wage earners who have struggled to make ends meet on just $5.15 per hour. After reviewing the available data, I believe that increasing the minimum wage will help those in need and will not adversely affect small businesses. A 1998 EPI study did not find any significant job loss associated with the 1996-1997 Federal minimum wage increase. On the other hand, the low-wage labor market--i.e. lower unemployment rates and increased average hourly wages--had performed better than in previous years. Small business owners in those states with higher minimum wage rates than the Federal minimum wage rate, such as the State of Washington at $7.93 per hour, appeared to have prospered. The New York Times reported on January 11, 2007 that small business owners in Washington's neighboring State of Idaho are hurting because of the State's low minimum wage rate of $5.15 per hour. Many residents living near Washington seek jobs in the Evergreen State, forcing small business owners to offer more than Idaho's minimum wage in order to hire new employees. Small businesses are recognized as an integral part of a powerful economic engine in America. As a critical job creator, they have helped build the prosperity that our country has shared. Nationwide, small businesses employ 52 percent of the private work force and contribute to 47 percent of all sales, spending over $1.4 trillion in annual payrolls. We need to strike a balance between the needs of these employees and their employers, who will be tasked with paying for any increase in the minimum wage. To counter balance the increase in the minimum wage, I have supported many significant measures to help small businesses in recent years. In the 109th Congress, I was a cosponsor of S. 406, the Small Business Health Fairness Act and introduced my own bill in the 108th Congress, S. 2767, the Small Business Economic Stimulus Act, which would have enabled small businesses to join together to form associated health plans. Further, on May 9, 2006, I voted to invoke cloture (to end debate) on S. 1955, the Small Business Health Plans bill. Further, in 2005, I supported S.2020, the Tax Relief Act of 2005, which passed the Senate 64-33. Among other provisions, this bill sought to extend various tax relief provisions for businesses including bonus depreciation and increased expensing for small business property. I have also consistently supported the U.S. Small Business Administration, SBA, and funding for the Small Business Development Center, SBDC, program, which operates in partnership with 16 Pennsylvania colleges and universities and assists entrepreneurs and small businesses through consulting, education and business information. This program received $89 million in fiscal year 2006. It is my expectation that the small business incentives proposed by the Senate Finance Committee will ultimately become law in legislation which increases the minimum wage.

Mr. SPECTER

Mr. SPECTER. Mr. President, once again I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Court noted that a public trial belongs not only to the accused but to the public and the press as well and recognized that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own initiative, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings-- some of which now hang in my office. Today, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. Although the internet has made receipt of the Court's transcripts, and even more recently, audio recordings, more widely accessible, the public is still deprived of the real time transmission of audio and video feeds from the Court. I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices. I think the American people will gain a greater respect for the way in which our High Court functions if they are able to see oral arguments. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system.'' When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' I reiterated those sentiments in September of 2005 when I re-introduced an identical bill. Today, I believe the time has come and that this legislation is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about 132 arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: ``Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capitol. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our Federal Government.'' In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.'' Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there was, in the views of many, simply a difference of opinion as to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives and liberties of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg, 1997, the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia, 1972, the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many States to amend their death penalty statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford, 1857--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States, 1971--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul and Roper--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Since the beginning of its October 2005 Term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued 11 decisions with a 5-4 split out of a total of 93 decisions. It has also issued 4 5-3 decisions in which one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part. In sum, since the beginning of its October 2005 Term, the Supreme Court has issued l6 decisions establishing the law of the land in which only 5 justices explicitly concurred. Many of these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 16 thinly decided cases but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans. The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders. In this case the Court considered ``the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury's weighing process.'' A majority of the Court held that henceforth in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined. Last November the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices. Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer, June 26, 2006; LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act, June 28, 2006; Kansas v. Marsh, concerning the Eighth and Fourteenth Ariiendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise, April 25, 2006; Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense, June 29, 2006; Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, May 30, 2006. The justices have split 5-3 4 times since October 2005. In Georgia v. Randolph, March 22, 2006, a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all of the nuance that only cameras could capture and convey. In House v. Bell, a 5-3 opinion authored by Justice Kennedy, (June 12, 2006), the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially-established procedural default rules, he could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default. In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts took no part, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite recent enactment of the Detainee Treatment Act. A thin majority of the justices supported the decision despite knowledge that the DTA explicitly provides ``no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In deciding the merits, the Court went on to hold that the President lacked authority to establish a military commission to try Hamdan or others without enabling legislation passed by both houses of Congress and enacted into law. This case was one of a handful of recent cases in which the Supreme Court released audiotapes or oral arguments almost immediately after they occurred. Yet it would have been vastly preferable to watch the parties' advocates grapple with the legal issues as the justices peppered them with jurisdictional, constitutional and merits-related questions from the High Court's bench. In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, Supreme Court considered whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision. Though Jones v. Flowers involved the Due Process Clause of the Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one could draw interesting analogies to the Court's controversial 2005 decision in Kelo v. City of New London. In Kelo, a majority of the justices held that a city's exercise of eminent domain power in furtherance of a privately initiated economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Four justices dissented in Kelo and public opinion turned sharply against the decision immediately after it was issued. It's possible, though merely speculation, that the public ire aimed at Kelo informed what became a majority of justices in Jones v. Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.'' Not only lawyers but all homeowners could benefit from knowing how the Court grapples with legal issues governing the rights to their houses. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these. From his perch on the High Court one justice has been heard to contend that most Americans could care less about the arcane legal issues argued before the Court. But as elected representatives of the people we must endeavor to view America from a bottoms-up, rather than a top-down perspective. Regardless of ones view concerning the merits of these decisions, it is clear that they frequently have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. Given the enormous significance of each vote cast by each justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: ``Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.'' To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: ``Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.'' However, in the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, the late Judge Edward R. Becker, then- Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005.'' During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation. The notable exception was the Honorable Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of problems particularly at the trial level, where witnesses who appear uncomfortable because of cameras might seem less credible to jurors. I note, however, that appellate courts do not appear susceptible to this criticism because there are no witnesses or jurors present for appellate arguments. The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor. During their confirmation hearings over the past two years, Chief Justice John Roberts stated he would keep an open mind on the issue and Justice Alito stated that as a circuit judge he unsuccessfully voted (in the minority) to permit televised open proceedings in the Third Circuit. I applaud the fact the new Chief Justice has taken steps to make the Court more open and to ensure the timely publication of audio recordings of the arguments as well as the written transcripts. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exist ``with such exceptions and under such regulations as the Congress shall make.'' Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor ensure that Supreme Court justices would undertake through television appearances. Also, any concerns could be mitigated by focusing only on the attorneys presenting arguments. There is no requirement that the justices permit the cameras to focus on the bench. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Mr. President, once again I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Court noted that a public trial belongs not only to the accused but to the public and the press as well and recognized that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own initiative, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings-- some of which now hang in my office. Today, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. Although the internet has made receipt of the Court's transcripts, and even more recently, audio recordings, more widely accessible, the public is still deprived of the real time transmission of audio and video feeds from the Court. I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices. I think the American people will gain a greater respect for the way in which our High Court functions if they are able to see oral arguments. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system.'' When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' I reiterated those sentiments in September of 2005 when I re-introduced an identical bill. Today, I believe the time has come and that this legislation is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about 132 arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: ``Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capitol. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our Federal Government.'' In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.'' Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there was, in the views of many, simply a difference of opinion as to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives and liberties of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg, 1997, the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia, 1972, the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many States to amend their death penalty statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford, 1857--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States, 1971--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul and Roper--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Since the beginning of its October 2005 Term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued 11 decisions with a 5-4 split out of a total of 93 decisions. It has also issued 4 5-3 decisions in which one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part. In sum, since the beginning of its October 2005 Term, the Supreme Court has issued l6 decisions establishing the law of the land in which only 5 justices explicitly concurred. Many of these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 16 thinly decided cases but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans. The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders. In this case the Court considered ``the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury's weighing process.'' A majority of the Court held that henceforth in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined. Last November the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices. Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer, June 26, 2006; LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act, June 28, 2006; Kansas v. Marsh, concerning the Eighth and Fourteenth Ariiendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise, April 25, 2006; Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense, June 29, 2006; Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, May 30, 2006. The justices have split 5-3 4 times since October 2005. In Georgia v. Randolph, March 22, 2006, a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all of the nuance that only cameras could capture and convey. In House v. Bell, a 5-3 opinion authored by Justice Kennedy, (June 12, 2006), the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially-established procedural default rules, he could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default. In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts took no part, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite recent enactment of the Detainee Treatment Act. A thin majority of the justices supported the decision despite knowledge that the DTA explicitly provides ``no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In deciding the merits, the Court went on to hold that the President lacked authority to establish a military commission to try Hamdan or others without enabling legislation passed by both houses of Congress and enacted into law. This case was one of a handful of recent cases in which the Supreme Court released audiotapes or oral arguments almost immediately after they occurred. Yet it would have been vastly preferable to watch the parties' advocates grapple with the legal issues as the justices peppered them with jurisdictional, constitutional and merits-related questions from the High Court's bench. In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, Supreme Court considered whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision. Though Jones v. Flowers involved the Due Process Clause of the Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one could draw interesting analogies to the Court's controversial 2005 decision in Kelo v. City of New London. In Kelo, a majority of the justices held that a city's exercise of eminent domain power in furtherance of a privately initiated economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Four justices dissented in Kelo and public opinion turned sharply against the decision immediately after it was issued. It's possible, though merely speculation, that the public ire aimed at Kelo informed what became a majority of justices in Jones v. Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.'' Not only lawyers but all homeowners could benefit from knowing how the Court grapples with legal issues governing the rights to their houses. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these. From his perch on the High Court one justice has been heard to contend that most Americans could care less about the arcane legal issues argued before the Court. But as elected representatives of the people we must endeavor to view America from a bottoms-up, rather than a top-down perspective. Regardless of ones view concerning the merits of these decisions, it is clear that they frequently have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. Given the enormous significance of each vote cast by each justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: ``Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.'' To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: ``Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.'' However, in the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, the late Judge Edward R. Becker, then- Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005.'' During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation. The notable exception was the Honorable Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of problems particularly at the trial level, where witnesses who appear uncomfortable because of cameras might seem less credible to jurors. I note, however, that appellate courts do not appear susceptible to this criticism because there are no witnesses or jurors present for appellate arguments. The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor. During their confirmation hearings over the past two years, Chief Justice John Roberts stated he would keep an open mind on the issue and Justice Alito stated that as a circuit judge he unsuccessfully voted (in the minority) to permit televised open proceedings in the Third Circuit. I applaud the fact the new Chief Justice has taken steps to make the Court more open and to ensure the timely publication of audio recordings of the arguments as well as the written transcripts. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exist ``with such exceptions and under such regulations as the Congress shall make.'' Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor ensure that Supreme Court justices would undertake through television appearances. Also, any concerns could be mitigated by focusing only on the attorneys presenting arguments. There is no requirement that the justices permit the cameras to focus on the bench. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Madam President, my request is to speak for about 10 minutes.