Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I appreciate the comments of the Senator and his leadership on this important issue. It is certainly one important for our State and all States. I see the Senator from New Mexico. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the following Judiciary Committee interns and clerks be granted the privilege of the floor for the remainder of debate on S. 852, the Fairness in Asbestos Injury Resolution Act of 2005: Adam Adler, Jessica Kane, Robert Newell, and Raj Parekh.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, the asbestos litigation in America today is out of control. We have been working on fixing it for years. In a previous life, I represented two plaintiffs, people who were injured from asbestos, seriously injured, and adversely affected in their health. I was embarrassed by how long it took, and by how many fees and costs came out of those cases. I have been embarrassed over the years to see this spasm in our legal system continue daily, not dispensing justice in a fair and legitimate way. We know from a Rand study and from our own experience that 58 percent of the money paid out by these defendants does not go to the people who are sick; it goes to lawyers. Somebody made an interesting point--I believe it was Senator Durbin--that actually a slightly higher percentage of money goes to defense lawyers than to the plaintiffs' lawyers. Regardless which side receives the money, over half of it is going to lawyers. If you are sued for $50 million and your corporation hires the best legal team possible and spends all this money, and there are court costs and depositions and fees for experts, it eats you up. When the judgments come out, often after years of work, very little money goes to the victim. It is not right. It is the worst performance by the legal system, in my view--other than discrimination based on race in our past--since the founding of the Republic. This cannot be justified, although it is happening this very day in courts all over America. Over 700,000 individuals have filed asbestos claims, and as many as 300,000 of those claims are pending today. The number of asbestos defendants started out at 300. These defendants were the people who made the asbestos, who shipped it out, who at some point became aware that asbestos was damaging to their health--they put no warnings on it--and just sent it out. Those people were the original asbestos defendants. The original plaintiffs were directly harmed by their actions. For example, my client was in a submarine, sawing asbestos with an electric saw in that confined space, breathing untold amounts of asbestos. By his early fifties, he was on oxygen. That is reality. That happened. Today, we have people who worked in a repair shop who claim somehow the brakes had asbestos in them and are now responsible for a disease they may have. And it may not be true. The damage is much less in many of these instances than it was for my client and others like him. Yet under the current system, these shaky claims get compensated. We need to sift through this mess and create a system that will work. Mr. President, $70 billion has been spent today to resolve asbestos- related claims. Of course, less than half of that $70 billion got to the victims. Companies are settling claims filed by people who are not sick because they cannot afford to litigate. It is just that simple. People who are not sick now are getting money as almost a nuisance or extortion payment because the lawyers are filing so many of these cases. It has been driving companies into bankruptcy at an alarming rate. There were 19 asbestos bankruptcies filed in the 1980s. Seventeen were filed in the 1990s. Between 2000 and mid-2004, there were an astonishing 36 asbestos-related bankruptcy filings, amounting to more filings in the first half of this decade than in the prior two decades combined. We hear a lot of people saying: I would rather sue and go through the court system than have this national fund. But there may not be a defendant to sue at this rate because 77 companies have gone bankrupt. With those bankruptcies, American workers have lost 60,000 jobs, costing up to $200 million in lost wages. The money, as I indicated, is not getting to the victims. Some beneficiaries of the Manville asbestos trust fund received as little as 5 cents on the dollar for their claims. If there is a $1 million verdict and you get 5 cents on the dollar, how fair is that? In my hometown of Mobile, AL, the Mobile Register, which has done a considerable, superb investigative effort into some of the abuses in this system which are prominent along the gulf coast because we have a lot of asbestos exposure in the shipyard industry, said: The biggest beneficiaries of the asbestos-related lawsuits tend not to be people with health problems, but the lawyers and the for-profit lung testing companies they hire. There has been a tremendous scandal over that. One courageous Federal judge has blown the whistle on it and perhaps broken that system up. But it is just one more example of the many abuses in the current system. Now, the U.S. Supreme Court has seen this matter from the perspective of the legal system. They are looking down at the 300,000 claims that are pending all over America. They are seeing that things are not going as they should. So in 1991, the Judicial Conference Committee--this is the judges' committee that represents all the Federal judges in America, appointed by the Chief Justice of the United States--said the asbestos situation had ``reached critical dimensions.'' Then they went on to say that the courts were ``ill-equipped'' to address these mass claims in any effective manner. This statement was significant because the Judicial Conference Committee does not write us very often about things like this. In AmChem Products v. Windsor, in 1997, Justice Ginsburg, writing for the Supreme Court--I will note parenthetically that Justice Ginsburg, who was an ACLU lawyer, one of the more activist members of the Court, and certainly not a shill for the business industry--said this: The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. The Supreme Court has in essence issued what is a challenge, a plea to us, really. In Ortiz v. Fibreboard Corp., Justice Souter, on the Supreme Court, said this: The elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation. . . . S. 852 is a response to the Supreme Court's concerns. The bill establishes a $140 billion trust fund, privately funded, for the purpose of directing compensation to the individuals suffering identifiable injuries as they result from asbestos exposure. Instead of waiting years for their claims to go through the tort system, the trust fund will allow legitimate asbestos victims to be compensated faster and on a no-fault basis, meaning that the claimants no longer have to go into court and have a trial to prove that their injuries are the result of negligence or fault on another party; they just make a claim and get paid based on the severity of injury. They do not have to prove causation or negligence. For asbestos victims who are the most ill, like those with mesothelioma, the bill provides for an expedited claims process and payment system. It is really expedited. Fifty percent of the $1.1 million a person with meso will be entitled to receive will be paid within 30 days, and the rest in 6 months. Now, we have seen in the paper, we have heard here on the floor, and we have heard from people who have come to the Hill, like widows of persons who have died from mesothelioma, just how long it takes to get compensation under the tort system. Meso is a deadly disease that is, indeed, connected to asbestos. Of that I think there is little dispute. That is why this legislation says that if you have mesothelioma and you have been exposed to asbestos, you walk in with a doctor and they will pay you $1.1 million, and you do not even need a lawyer. You get all of your compensation, and you do not have 60 percent of the money taken out for fees and costs, and the money will be paid promptly. Isn't that the way the system should work? But we have had these widows and other victims coming here, telling us how long it takes to get their money. I began to think about it a little bit--I know Senator Specter has had the opportunity to deal with this issue, too--and how sad it is to see people who have been widowed as a result of asbestos. Let me say this. Widows are coming here asking for payment as the result of the death of a loved one because they have not yet gotten their money. Why haven't they been paid? Because it takes years in the current system to bring the case to judgment, and then there is only partial judgment. Some defendants settle, some do not settle, and the cases go on. And the people with fatal diseases such as mesothelioma die before the case is ever concluded. I am telling you that is the way it works in the real world. That will end with this process. We have the ability to create in this Senate a legal scheme for handling these cases that will end a system where the real victims get pennies on the dollar and individuals with no real injuries clog up the system or get windfalls. It will end a system where lawyers are the big winners, often walking away with more than half the proceeds. The FAIR Act will provide greater certainty to victims, defendant companies, and insurers. Under the fund, victims will be paid on a set schedule, according to their proven illness. Defendant companies and insurers will contribute a set amount of money to the fund on a predetermined timetable, allowing them to move forward and plan for their financial future. The money will go to victims, not to overhead and attorneys. The Democratic leader has said this is some sort of corrupt process, and those who want to fix this system are somehow coming here with less than clean hands, that their judgment is clouded by K Street or money. I would ask the Democratic leader to defend this system, if you will. Come here and justify what is going on in the courts of America. Dickey Scruggs, who lives not too far from my hometown of Mobile, AL, was the architect of the asbestos litigation. He started the cases, and he established the legal principles that led to all of these suits around the country. He came with Senator Specter the other day and said it is time to bring it to an end, that this is not a legitimate legal process anymore. It is not working effectively. It is an embarrassment to us all. It is an embarrassment to me that Congress cannot fix a system where billions of dollars are being paid out, billions of dollars--$70 billion already, and 60 percent of it does not go to the victims. What kind of legal system is that? Now, we have a lot of businesses that are opposing the legislation. I would suspect their views are that they have gotten a calculator out and they have had their accountants and lawyers get together, and they have calculated that they may not pay as much under the current system as under this bill, so they do not want the bill to pass. We have plaintiffs' lawyers who are out there making millions of dollars every day on this system. And there are defense lawyers also making millions of dollars on this system. They object to the legislation because they have a special interest in it. But we are Senators. We represent the public interest. We have a duty and an obligation to defend this American legal system, and to make sure the legal system has integrity. We are entitled and have a responsibility to superintend it. When we see things in the system that are plainly wrong, it is our responsibility to fix them. That is what we are setting about to do with this bill. It is not easy. I do not deny that. We will continue to listen to the legitimate complaints of those who feel somehow this system will not be fair to them, and continue to make adjustments. Senator Specter, Senator Leahy, and others have--we have all promised to do that, to try to, in good faith, work in that way. But, again, our responsibility is not to plaintiffs' lawyers, who poured millions of dollars in campaign contributions to one side or another in these races, or businesses that pour out large contributions. What is that? Our responsibility is to integrity and to propriety and to justice. Justice is not being done in these cases. Dickey Scruggs himself says it should end. He supports this legislation. Does anybody say he does not care about victims? He has represented thousands of them, tens of thousands of them. I am glad to work with Chairman Specter and the others in support of this bill. I believe his work on it comes from the highest motives, the purest motives. We can disagree on the tactics, but it is offensive to me that we have Senators on this floor suggesting that an effort to end this abusive and unjust system is somehow, in itself, a corrupt act. That is not true. Senator Specter and Judge Becker of the Third Circuit Court of Appeals, a senior judge and capable person, have had meetings all over this country, listening to everybody who has an interest in this matter. Senator Specter has spent hours in these meetings--days, weeks, months, even. Senator Hatch, as chairman of the Judiciary Committee before Senator Specter, has also worked tirelessly to accommodate concerns. For years we have been working on this legislation. It is an open process. The bill is out there. If it needs to be improved, I support that and will listen to that effort. But I do not think we need to drop the ball now. We are moving forward toward the goal line. We have an opportunity to provide relief to victims in a way that cannot help but be helpful to them, but they may not know that. I am getting calls from victims, and they are saying things with written messages their trial lawyers have given them to say. It breaks my heart. To think, I used to be representing victims, so I know a little bit about this matter. I am sympathetic to them. They do not know. They have no idea this system is going to provide more money for victims, quicker and faster, with less cost than the current system. They are hearing it only from one side--their lawyer's. So it is up to us to do the right thing and not play politics, not lose our nerve at this point in history. I am glad to see Senator Specter here. If he would allow me, I wish to take a couple minutes at this point to say a few words on the passing of Coretta Scott King. I say to Chairman Specter, if you wish to comment, I did want to have a few minutes to express my thoughts on the funeral today of Coretta Scott King.

Mr. SESSIONS. Thank you, I say to Senator Specter. You put your heart and soul into this effort. Nobody should think the effort you have gone forward with, and that Senator Hatch and Senator Leahy and Judge Becker and others have gone forward with, is for any other purpose than trying to make this system better. We absolutely can improve the system. It is within our grasp to do so. If we cannot pass legislation that takes the 58 percent of compensation that is currently not getting to the victims and allow those victims to have larger amounts of money, it is our fault. We are pretty incompetent. Coretta Scott King

Mr. SESSIONS. Mr. President, I want to take a moment to express some thoughts about the death of Coretta Scott King. She grew up in Perry County, AL. Her father ran a country store as did mine. Mrs. King, in so many ways, epitomized the good background that she had and where she was raised. She carried those values forward throughout her life. She graduated from Lincoln High School in Marion, AL. It was an all-Black high school that educated the offspring of former slaves from 1867 and 1970. The late Jean Childs Young, wife of former Atlanta Mayor Andrew Young, was another distinguished Lincoln graduate. After high school, where she was valedictorian of the Class of 1945, Mrs. King accepted a scholarship to Antioch College in Ohio, where she studied the violin, singing, and piano. After graduating from Antioch, she accepted a scholarship to attend the New England Conservatory of Music in Boston, where she met her future husband Martin, who was also a student in Boston. They got married in 1953 and the very next year, they were at Dexter Avenue Baptist Church, within sight of the State Capitol of the State of Alabama. It was at this time that she and Dr. King came to know Rosa Parks, whose refusal to give up her seat on a Montgomery bus led to the civil rights movement. Rosa Parks was arrested and the Montgomery bus boycott ensued, sparking a movement to ensure that all citizens were treated equally under the law. Dr. and Mrs. King and Rosa Parks truly changed a system that could not be defended. It was a system that treated people, because of the color of their skin, as second-class citizens and not equal. It was not a defensible system morally or legally. Judge Frank Johnson got the bus boycott case, and he ruled that the equal protection clause of the U.S. Constitution said people should be treated equally. Requiring someone to go to the back of the bus, despite a State statute to the contrary, did not represent equality. It was unconstitutional. The Supreme Court agreed, and that gave a real boost to the civil rights movement. During her 78 years, Mrs. King represented the kind of character and integrity and commitment to right living that should inspire us all. And she has given her best full measure. She has seen the toils and snares of life. She moved through them through her full and complete time on this Earth. She has run the race and is fully entitled to the rewards of that successful race. It is my honor and privilege to express, on behalf of the people of Alabama, my sympathy to the King family, to wish them well and to say to them how our State, our Nation, and, indeed, the world is better off for the courage they displayed. I yield the floor.

Mr. SESSIONS. Mr. President, I appreciate very much the leadership of the chairman. We have been working on this idea for quite a few years. I believe more strongly than ever that it is time to fix this broken system. I will talk about that more. If the chairman does not mind, our colleague, Senator Ben Nelson from Nebraska, wanted 2 minutes. I yield the floor, and I ask unanimous consent I be recognized after Senator Nelson.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the Senator. Indeed, it has been most distressing to me to see this nominee, the epitome of a restrained, principled and highly respected judge, be portrayed as some sort of extremist. It is beyond my comprehension, frankly. Questions have been raised about different cases. Alito answered each and every one of those questions in front of the Judiciary committee. Senator Schumer and I serve on the committee. He was asked about them repeatedly. He was asked 677 questions, and he answered a higher percentage of them than perhaps any judge in history--97.3 percent. A Clinton appointee, Justice Ginsburg, for example, was only asked 384 questions, and she only answered 80 percent of them. Justice Breyer, another Clinton appointee, was asked 355 questions, and he answered 82 percent. So Judge Alito was most forthcoming. He was asked more questions and grilled and grilled, and he answered them with skill, fairness, and reasonableness. He was unflappable in his testimony and so judicious in his approach to every question. It was a tour de force, a real model of how a judge should perform. I could not be more proud of him and more proud of President Bush for nominating him. They say this nomination divides the country. Whom does it divide? It divides the hard left, who wants the Court to eliminate all expression of religion from public life. We see the words ``In God We Trust'' above the door in this Chamber. We had a chaplain open this Senate with prayer. Are we going to have the Supreme Court come in and strike those things down? People are very confused about those issues today. We have people who want to get rid of religion from the public square. They know they cannot achieve this by votes, so they want a judge to do these things. They are not happy with the U.S. Constitution. They want a judge to quote foreign law to reinterpret the words in our statutes and in our Constitution. That is not what the rule of law in America is about. We have had a lot of extreme cases redefining the meaning of marriage. States have defined marriage since the founding of the Republic. Now all of a sudden we have lifetime-appointed, unelected judges discussing, and some court finding, that the legislature's definition of marriage--people who are responsible to the people, the legislative branch--is not correct. So the judges are now going to reinterpret that definition and make it say what they want it to say. They are going to take people's private property, not for public use, as the Constitution says. Now the court says we can take even poor people's homes so that someone can build a private shopping center. That is not what the Constitution says. I know of judges who thought it would be better policy if the Constitution said what they want it to, so they just made it say that. But that is not a principled approach to the law; it is not the American approach to law. President Bush said we don't need that kind of judge. We want judges who are faithful and principled to the rule of law. They say Judge Alito is extreme. That is not so. It is an incredibly false charge. What about the American Bar Association? Those of us on the Republican side have been somewhat critical of them over the years. The ABA is pretty liberal in all of the resolutions it passes. Sometimes it is very liberal. We felt that liberal persuasion infected their evaluation of judicial nominees. But they still evaluate nominees in a very careful way. The American Bar Association reported to our committee, after surveying 2,000 people, personally interviewing 300, having teams of scholars read all of the writings Judge Alito ever wrote or participated in, and then they voted among themselves. They talked to lawyers who litigated against Judge Alito when he was in practice and judges who served with him and litigants who appeared before him, people who have known him, judges who served with him, and 300 were interviewed in depth. This committee of the American Bar Association-- 15 of them from all over the country--reviewed all of that. Many of them participated directly in the interviews. Sometimes, people will tell the ABA things they may not tell the newspaper, things that are bad about somebody. They came back with a unanimous conclusion that Judge Alito was entitled to the highest possible rating. The American Bar Association, after a most intensive review, has given him the highest possible rating. Would they have done that if they thought he was an extremist? Would they have done that if they thought some of these cases we have heard about were wrongly decided or extreme in any way? No, they would not. So did his colleagues on the bench. One of the most extraordinary panels of witnesses I have ever seen involved judges who served with him on the Third Circuit, not a rightwing circuit. The Third Circuit, if anything, is considered a moderate to liberal circuit. It is in the Northwest, and Philadelphia is the seat of the Third Circuit. New Jersey is also in that circuit. Judge Alito served on that bench for 15 years. People have suggested that somehow he is a tool of President Bush. He had a lifetime appointment on the Federal bench in the Third Circuit and has served for 15 years. He has not been a part of any of this terrorism stuff we have heard about or any of these rulings involving the Administration. He hasn't been a part of it at all. He comes to it with all his skills and intelligence as an honored graduate at Princeton and Yale, where he served on the Yale Law Review. He will bring his insight into these cases, which is exactly what we want--an unbiased umpire to deal with the issues. Mr. Stephen Tober and others explained how one gets a unanimous ABA rating. The American Bar Association panel repeatedly gave him high marks. They said Judge Alito ``has . . . established a record of both proper judicial conduct and evenhanded application in seeking to do what is fundamentally fair.'' One of the three members of the ABA who testified was a civil rights attorney, an African American who represented the University of Michigan in that famous affirmative action quota case. He said this about Alito. He said that all the people they contacted concluded that Judge Alito was held in ``incredibly high regard.'' The ABA witnesses said they were unaware of anyone who has claimed that Alito intentionally did anything wrong with regards to the Vanguard matter that has been raised repeatedly and I guess dropped now since we haven't heard that much about it. We now hear this interesting argument that we needed Harriet Miers. They are now harkening back to Harriet Miers nomination, claiming the Republicans are at fault for her withdrawal. Not one Republican Senator I am aware of ever said Harriet Miers should not be voted on or said they would vote against Harriet Miers. Some raised questions about her experience, as did Senator Schumer, who raised the issue a few moments ago. When Harriet Miers was being considered, Senator Schumer said: I think there are three places where Harriet Miers yet hasn't sort of met the burden of proof. The first is qualifications, the second is independence, and the third, most importantly, we have to know her judicial philosophy. So Senator Schumer, who is now asking that we have Harriet Miers, was raising serious questions about her a few weeks ago. She withdrew. She withdrew because she was sitting at the right hand of the President during so many of these matters involving the war on terrorism. The other side had already made clear they were going to demand her personal conversations, her personal documents, her communications with the President, which are legal documents protected by client-attorney privilege. She realized it was going to be a matter that would probably not be acceptable to the Members of the Senate. It would be an uncomfortable process for her, and she withdrew. Mr. President, what is the remainder of the time on this side?

Mr. SESSIONS. Mr. President, the case we have heard the most about is Doe v. Groody. The allegation has been made time and again that Judge Alito ordered the strip search of a 10-year-old girl. I was a prosecutor for nearly 15 years. I read the case. I was at the Judiciary Committee and heard Alito testify. I would like to share some thoughts about that case. The reason I would like to talk about it is because I would like for everyone who is hearing me talk to understand that this is a typical example of distortion and misrepresentations of the actions of Judge Alito. It is so wrong and so biased and so unfair that it ought to embarrass those who made the charges against him. He clearly did the right thing, in my opinion and it has been misrepresented. It is symbolic of what has been said about other cases that I don't have time to talk about at this late date. In Doe v. Groody, police officers were investigating a drug-dealing group at a certain house. They went to the judge and presented an affidavit to search that house and all persons on the premises. They presented adequate probable cause to believe that a drug-dealing operation was going on in the house, and the judge agreed. There was a form for a search warrant and that said John Doe was to be searched. In this case, the judge directly incorporated an affidavit attached to the warrant for purposes of probable cause. The affidavit is where officers asserted probable cause to search all persons on the premises. This was a magistrate in a State court years before Judge Alito ever knew the case existed. He was sitting on the Federal appellate bench at the time. So officers go out and do a search, and a female police officer takes the mother, along with the 10-year-old child, into the bathroom. She asks them to pull down their trousers and lift up their shirts so that she could detect whether there were any hidden drugs or weapons. They did not take off their undergarments, nor was there any intrusive touching. The female officer saw no drugs hidden on the mother or the girl, and that was the end of that until sometime later when the police officers were sued personally for money damages. When it came before Judge Alito, he concluded that the affidavit had been made a part of the warrant that asked for the privilege of searching people on the premises, which gave the police officers at least a reasonable basis to believe they had the authority to do so. They got a warrant. They asked for this privilege. They thought, by attaching the affidavit to the warrant that they had the power to search everyone on the premises. I don't know what the right answer is legally, but I do agree with Judge Alito that the police officer could reasonably have felt that they were operating under the law, and should not be personally liable for money damages to some dope dealer. American police officers need to pay attention to this matter if this is what my colleagues think is bad law. They get sued enough trying to do their duty. One of the more fabulous panels we ever had, I thought, were colleagues on the bench who served with Judge Alito. Judge Edward Becker has been on the bench for 25 years, the full time that Judge Alito has been on that bench. One of the more respected appellate judges in America said these things about Judge Alito. This is a man they are accusing of being some radical, some extremist. This is what Judge Becker, who has been on the Federal bench for 25 years, said: Sam Alito ``is gentle, considerate, unfailingly polite, decent, kind, patient, and generous. I have never once heard Sam raise his voice, express anger or sarcasm or even try to proselytise. He expresses his views in measured and tempered ways.'' On integrity, Judge Becker says: Judge Alito is the soul of honor. I have never seen a chink in the honor of his integrity which I view as total. On intellect: He is brilliant, he is analytical and meticulous and careful in his comments and his written word.

Mr. SESSIONS. Mr. President, I conclude with these words: He is not doctrinaire, but rather open to differing views and will often change his mind in light of the views of a colleague. This is the man who has been nominated and who is entitled to confirmation by the Senate. I thank the President and yield the floor.

Mr. SESSIONS. Mr. President, I thought the leaders agreed not to ask for additional time. Otherwise, I would not have an objection. I don't know what Senators Reid and Frist said. They have the time set for an 11 o'clock vote. So I am inclined to object unless----

Mr. SESSIONS. I will not object.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to pay tribute to our late colleague, Senator William Proxmire--beloved father, husband, veteran, and former member of this body. With over 32 years of service in this institution, Senator Proxmire constantly challenged us to remain fiscally responsible. As chairman of the Committee on Banking, Housing, and Urban Affairs for four Congresses, he was constantly working to protect the taxpayers. Most Members of this esteemed body recall the steady reminder by Senator Proxmire that ``Uncle Sam is the last of the big spenders.'' His firm advocacy for good sense and forethought on spending led to the creation of the ``Golden Fleece'' awards. Senator Proxmire would hand these awards out, to friend and foe, to highlight government waste, abuse and scandal. His ``maverick'' attitude toward our responsibilities with the taxpayers' dollars should be remembered, honored, and, as I am sure he would agree, employed more today. We miss Senator Proxmire and his ``Golden Fleece'' awards. Our country lost Senator Proxmire this past December as he succumbed to the devastating affects of Alzheimer's--a disease he battled daily since 1994. He spent his last years at the Copper Ridge Institute in Eldersburg, MD. Copper Ridge is a fantastic facility dedicated to the study of caring for those suffering from dementia. The goals of the Copper Ridge Institute are to share the knowledge it has acquired in the field of dementia care. For the last 10 years, staff from Copper Ridge, the Copper Ridge Institute and the Johns Hopkins University School of Medicine have worked together to develop a model of care that respects the dignity of the people battling this disease and that provides a better quality of life to them. I had the pleasure of meeting and talking with Senator Proxmire's wife, Ellen, in September 2004. Mrs. Proxmire sponsors an annual award in the name of her husband for those who support this dedicated Alzheimer's research. Mrs. Proxmire has truly become the voice for those who cannot speak. She has worked diligently to see more national attention given to Alzheimer's disease and the important role specific care models like that at Copper Ridge play in preserving the dignity and quality of life of those with the disease. As Mrs. Proxmire likes to point out, ``Until there is a cure for the disease, learning to care for those with Alzheimer's is paramount.'' Mr. President, we have a responsibility, as nearly 4.5 million Americans find themselves faced with this terrible disease, to work with those involved with research and medicine in this field. Our country is stronger today because the name ``William Proxmire'' is found on the rolls of the Senate. As we pause to remember this great man, true patriot, and fellow Senator, this institution should take heed and continue our support in the fight for an Alzheimer's cure.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, it is very distressing and disappointing that we are now looking at a filibuster of the nomination of Samuel Alito to be a member of the U.S. Supreme Court. He has served as a Federal appellate judge--outside of Washington, DC, not involved in any of the political issues here--for 15 years and during that time has assembled an incredibly strong group of admirers who have testified on his behalf to a degree that exceeds almost anything I have had the pleasure to see as a member of the Senate Judiciary Committee where we had hearings on this matter. The American Bar Association interviewed 300 of his colleagues-- lawyers who have litigated against him; lawyers who have worked with him; judges who have heard him, whom he practiced before; and his colleagues on the bench. An African-American member of that ABA team--who represented the University of Michigan in defending their admissions policy that some called a quota policy--that individual said, quote: He was held in incredibly high regard. In fact, I am not aware of anyone who was interviewed that said anything bad about this nominee. He was at the top of his class at Princeton, and the top of his class at Yale Law School where he served on the Law Review. He argued 12 cases before the U.S. Supreme Court. There is not more than a handful of lawyers in this country who have argued even a single case before the Supreme Court, much less 12. Then he was U.S. attorney, prosecuting criminal cases for the United States of America in New Jersey, where he prosecuted Mafia groups and drug dealers and people such as that. He has spent 15 years on the bench, demonstrating day after day the judgment, the intellectual integrity, and honesty it takes to be an outstanding judge. He is a remarkable nominee. His father was an immigrant from Italy. He grew up in New Jersey, and has had the great honor to be one of those sons of immigrants who got to go to the great University of Princeton. He in every way represents the best there is in American law. And more than that, he understands what a judge's role is. He has expressed this in so many good ways. Without notes, he talked to us in that committee from his heart. He summed up, time and again, question after question, his view that a judge has a responsibility to decide the case that is before them, not to set grand policy for America, but to try the case of the litigants that are before them. Somebody has a complaint, and they are complaining that the law or the Constitution has not been properly followed, and they are asking for relief. The judge decides each case based on the facts. First, a judge must, with intellectual honesty, find out what the facts are, and, then, after the facts are determined, apply the established law to that fact situation and render a decision without regard to any personal or political views--whether he is a Republican or a Democrat, a liberal or a conservative--without regard to any personal, social, religious, or other views he may have. Then he renders that opinion. As Alito said, he learned as a judge you should delay making up your mind. It is a habit of mind a judge learns. He hears those facts, he thinks about those facts, and considers those facts and makes up his mind--only after the full matter has been brought before him and has reached its full, ripe point to make a decision. I thought that was a very insightful and wise comment he made. We had a unanimous highest possible rating from the American Bar Association. As I read last night, one can easily see the tremendous admiration and respect his colleagues on the Third Circuit Court of Appeals have for him. They were so impressive in the committee. Several of these judges were senior judges. Most of them had served the full 15 years with him on the bench. They have known him. They have seen him in private conferences. They said he is a man of intellectual honesty. He is a man who is fair, unbiased. He never raised his voice, never proselytized for his view, but is a man with incredible analytical ability to get to the heart of a matter and make a just decision. What more could you ask for on the bench? Many of these judges were Democratic appointees. The Third Circuit is not a conservative circuit. It is probably one of the more liberal circuits. It sits in Philadelphia. And to say this man is extreme, outside the mainstream, unworthy of serving on the Supreme Court is in itself an extreme statement. It is not justified. The President made a simple promise in this last election that he repeated at every stop he made: I want a judge who will show restraint, who will follow the law and not make law, who does not see it in their bailiwick to reset the social policy of America. And we have been seeing that type of judgement time and time again. Our colleagues who like what these judges are doing, our Democratic colleagues, apparently, are not happy with Alito's philosophy of judicial restraint. Now let me tell you, President Bush--this Senator does not believe we should put a conservative activist on the bench, a judge who will utilize his opportunity on the bench to promote a conservative agenda. That is politics. That is what we do here in the legislative branch. That is what we are supposed to fight out in this Chamber. The American people have a role to play in it because they can vote us out of office. But if a judge on the Supreme Court of the United States uses that power to interpret the meaning of words in the Constitution to undermine the plain meaning of those words, undermine the meaning that the ratifiers and drafters had in mind, to make it say something they want it to say, then they are legislating, they are in this branch. It is more dangerous than that because they do not legislate like we do. If we legislate, the next Congress can come in and change it. We can be voted out of office, and they can reverse it by 51 votes out of the 100 Senators. But what if a Supreme Court judge declares that no longer can States define marriage as a union between a man and a woman, that we are going to declare that any association of people can call themselves a marriage and say the Constitution says it? They have a lifetime appointment. They never have to answer to the public. They can stay on that bench as long as they desire. What recourse do the American people have for that? Only a constitutional amendment, and that takes a two-thirds vote in the House of Representatives and the Senate and three-fourths of the State legislatures to overturn it--an incredibly huge task. So it is critically important we have judges who are not activists on the bench, that we have judges who will faithfully apply the law according to the way the constitutional drafters and ratifiers intended it, and to follow faithfully the laws of the Congress, and respect those laws as long as the laws passed by the Congress or the States do not conflict with the Constitution, and show some respect to the States. We have had so many of these activities that have gone on in our Court that show a lack of discipline. I pointed out last night that we are at the point where one of the courts of appeals that represents 20 percent of the people in the United States, the Ninth Circuit, has ruled that the Pledge we recited which says ``under God'' in it is unconstitutional. The U.S. Supreme Court did not reverse it. The U.S. Supreme Court simply said that the father who brought that case did not have standing because he did not have custody of the child. Now he has gone back and found somebody else and apparently has a plaintiff who does have standing. I am not sure what the Supreme Court is going to rule. Will they next come in here with a chisel and take those words right up there on this wall--``In God We Trust''--off the wall of the Senate? It is not such an impossible suggestion. Our Presiding Officer came here shortly after Senator Byrd--but he was here in the Congress, I believe, as a Member of the House when we put ``under God'' in the Pledge. And we ratified that again, when this case first came out, in the Senate that we intend that remain the law. But the Court has the ability--just like that--to strike it down. That is what this issue is about. We talk about the takings case, the Kelo case, where they redefined the meaning of words that a property can only be taken for a public use. Now they say it can be taken for a public purpose--a big change. It is one thing for the government to take your land to build a dam, or a highway or a public park, but to take your land to build a private shopping center was not what the Founding Fathers had in mind. But this is what the Supreme Court ruled, apparently believing that was too restrictive. It would be better if you could take land for private purposes as long as it had a public benefit and they approved that. Not good. Regardless of what you think of the merits of that takings issue, it represented a lack of discipline, an activist trend on the Court by which the judges declared that their personal views would allow them to actually bend the plain meaning of the Constitution to have it say what they wanted it to say, not what it actually did say, not what was meant from the beginning. I am disappointed that we have an objection, any objection to this fabulous nominee. President Bush in his campaign promised a judge who would show restraint, that he would be highly qualified and a man or woman of integrity. That is what he submitted. But now we are looking at a filibuster. I am not kidding. I thought we had settled that issue. But now we are facing a filibuster. They have put it in their news releases, Democratic Senators. Apparently, the former Presidential candidate for the Democratic Party in the last election, who obviously did not win, called back from Davos, Switzerland, to say that they ought to filibuster. Count him in. He urged a filibuster. The assistant Democratic leader in the Senate, Senator Durbin, apparently is supporting a filibuster of this nomination. It is not right. This is a solid, mainstream judge who was rated, unanimously, the highest rating the American Bar Association gives. He has the unanimous support of his fellow judges on the Third Circuit, Democrats and Republicans. He has an extraordinary record and resume in every respect. They want to filibuster this nomination. I know the People for the American Way want it. I know the National Abortion Federation and other abortion groups want it. We are Senators. We have to ask ourselves: Is this where we are heading? Is this what we are about, that we are now going to take nominees with the kind of respect Judge Alito has and subject them to a filibuster? It was discussed in this past election. The American people, I am convinced, strongly support the kind of judge Judge Alito will be. They don't want an activist judge setting social policy. They absolutely understand this issue. I had the pleasure to follow one of our most outstanding young Senators last night, Mr. John Thune of South Dakota. He made a remarkable speech. He concluded it by saying he campaigned on this issue in South Dakota. He promised to vote for this kind of judge. I am thinking, whom did he beat? He beat the former Democratic leader of the Senate, the former majority leader for a short time, Senator Tom Daschle, who was leading filibusters to obstruct up-and-down votes on highly qualified nominees. I submit to the Members of this body that the people of South Dakota were not happy with that. In large part, Senator Thune is here today because of the obstruction of the Democrats over the last several years of highly qualified nominees who simply believe a Federal judge should show restraint and follow the law. That is all we want. That is all the American people want. That is what we have a right to expect in Federal judges. What kind of filibuster is this we are seeing? It is almost amusing. Where are the Senators? I was here last night. I followed three Republicans talking. We were supposed to be in session until 8. Nobody from the other side of the aisle showed up to talk. I am not sure there are any around today to complain. They are supposed to be telling us why this man should not be on the bench. We have been here for 2 days, and fewer than 25 Democratic Senators have come to the Senate floor. It has been a pretty vacant situation. Republicans shut down the Senate each night. Nobody seems to want to come and raise the issues and debate them. If they want to filibuster, if they have serious concerns, I suggest they come down and express it. Let's talk about it. My colleague, Senator Specter, during the Judiciary Committee hearings gave the Democratic Senators every opportunity they desired to raise, for as long as they wanted to, any issues they had with Judge Alito. He allowed them to call a whole host of witnesses who would be critical. The truth is, I don't think any of them knew Judge Alito. Most of them had axes to grind one way or the other from some political agenda they had. Even out of that group, I don't think but one or two actually said they were against him. Laurence Tribe raised some concerns, but he never said he was against the nominee or that he should not be confirmed. He is a professor himself, and he knows the legal expertise Judge Alito brings to the court. If you have something to filibuster about, come on down. Why put us through this? Senator John Cornyn has called this effort needless and strange. That is a good definition. Other words come to mind: pointless, political. The Democratic leader, Senator Harry Reid, went before the Democratic caucus, according to the New York Times, just last week and urged his colleagues to vote against this nomination. They made it a political agenda item to block this nomination. Is it Presidential politics or politics in general? I submit both. Senator Reid's spokesperson, when asked, said: Well, they want to get as many votes as they can against him to make it an issue in the election--for politics, not a question of whether the judge is ready, qualified, and able to serve. Maybe this is some sort of theory that, We can reward our base--the National Abortion Rights Action League, the People for the American Way, the Alliance for Justice, some of those leftwing groups that have been driving the process for years. Maybe it will keep them happy. Maybe they will keep sending money. Maybe they will keep attacking George Bush and saying he is appointing extremists to the bench. Maybe that is what they are trying to do. There is no basis to object to this nominee. There is absolutely no justification for denying him an up-or-down vote, which is what the filibuster attempts to do. We can all agree, I suppose, that it is an international filibuster because it was apparently hatched in Davos, Switzerland, where Senator Kerry now is with those masters of the universe trying to figure out the world economy. Maybe they ought to spend more time trying to get gasoline prices down than worrying about conjuring up a filibuster of a judge as able as Judge Alito. They are not here in the Chamber, and that is what we have every right to expect. Maybe, since they are abroad, they are worried about Judge Alito's position on foreign law. We have seen a trend with members of the U.S. Supreme Court. Recently, Justice Ruth Bader Ginsburg went to New York and made a speech in some great detail--shocking, to me; I have recently read the speech--in which she defended the citation and consideration of foreign law to determine how to interpret American law. This is contrary to our American legal system. A judge's duty is to apply the plain meaning of the words, if there is some dispute about it, to look to the legislative history or maybe the background of the bill from an American perspective, not a European perspective. For example, in Roper v. Simmons in 2005, the case held that the execution of individuals who were under the age of 18 at the time they committee a capital crime violates the 8th and 14th amendments, overruling a previous precedent of the Supreme Court. Our liberal colleagues have been very strong in claiming that we should stick to precedent, particularly when they talk about abortion. But in that case, the court reversed Stanford v. Kentucky. The majority of the Supreme Court, trying to interpret the Constitution of the United States, spent almost 20 percent of its legal analysis discussing the laws of Britain, Saudi Arabia, Yemen, Iran, Nigeria, and China. We have a lot of complaints. People are not happy with rulings of the Court. Many times, those rulings are justified and we are simply unhappy with the result. We are concerned about it. Maybe it is not justified. But I believe the American people understand that this is a dangerous trend by the Court that they would seek to interpret American law by looking to Nigeria and China--red China, last I heard--Yemen, where there are terrorists, and Iran, a pariah to the international community. They are quoting them, discussing what their views of our Constitution are relative to cruel and unusual punishment. Regardless of what one believes about the merits of the case, legislatures absolutely should discuss the age at which an execution should occur, but what does the Constitution say about it? That is what the Supreme Court is supposed to be deciding, not what they think ought to be done. In Grutter v. Bollinger in 2003, Justice Ginsburg looked outside the Constitution to make her decision, noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allowed for such discriminatory practices or ``maintenance of unequal or separate rights for different racial groups.'' This is a question under our Constitution which says that every American, whether they are of minority or majority ancestry or background, is entitled to equal protection of the law. That raises some questions about quotas and matters of that nature. So in her decision, did Justice Ginsburg look at our Constitution, which guarantees every citizen, regardless of their race, equal protection of the law? What did she look at? She considered the International Convention on the Elimination of All Forms of Racial Discrimination. That is not a basis for an American Justice to lay an opinion. We have seen a lot of that. Let me briefly cite what Judge Roberts said about that: If we're relying on a decision from a German judge about what our Constitution means, no President accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge, and yet he's playing a role in shaping a law that binds the people in this country. I think that's a concern that has to be addressed. Absolutely, he is correct. He goes on to say: In foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them, they're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they're finding precedent in foreign law, and use that to determine the meaning of the Constitution. I think that's a misuse of precedent, not a correct use of precedent. I say to the President pro tempore that if he chooses to speak at this time, I would be glad to yield if he would like.

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

Mr. SESSIONS. Before I yield, I have been making humor here about Senator Kerry over in Davos, Switzerland, calling for a filibuster back here. One of the issues we have with regard to the confirmation of judges is that judges show restraint and be faithful to our law, not ``foreign law.'' There is no doubt that Judge Alito and Justice Roberts do not agree that we ought to be quoting foreign law to justify legal opinions in the United States. Judge Alito said this: I don't think we should look to foreign law to interpret our own Constitution. Amen to that. He said this: Our Constitution does two basic things. It sets out the structure of our Government and it protects fundamental rights. The structure of our Government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our Government. Amen to that. He went on to say: As for the protection of individual rights, I think we should look to our own Constitution and our own precedents. . . . Our country has been the leader in protecting individual rights. Are we going to look to China, Yemen, or Iran on that issue? He goes on to say: I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. . . . I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world. That is the kind of judge we need on the bench. That is the kind of judge President Bush promised to nominate. That is the kind of judge he sent up here, and he deserves confirmation. Mr. President, I suggest the absence of a quorum.

Mr. SESSIONS. Mr. President, today the Senate will continue to debate the nomination of Samuel Alito to the Supreme Court. Yesterday, the majority leader, Senator Bill Frist, was forced to file a cloture motion to stop a filibuster from Senators on the other side of the aisle. That cloture vote will occur at 4:30 p.m. on Monday. It is our expectation that cloture will be invoked and that the Senate will then proceed to a vote, a final up-or-down vote, on the confirmation of Judge Alito on Tuesday at 11 a.m. I have some remarks I wish to make on the Alito nomination, but before I do, I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, they want to say this has something to do with that. They have been hankering for Harriet Miers, which is rather odd, I think. They have suggested somehow that some rightwing cabal caused President Bush to withdraw her nomination. She didn't have a lot of constitutional experience. I am not aware she has ever argued a case before the Supreme Court. Very few lawyers have, although Judge Alito has argued 12 cases before the U.S. Supreme Court. She has not served as a judge. He has served 15 years as a Federal appellate judge. At any rate, she is a wonderful person who has many fine qualities. I am not at all sure that she would be any more restrained or any more liberal in her interpretation of judicial decisions than Judge Alito. I don't know what her philosophy would be. But I do know this: They have complained steadfastly that Judge Alito somehow is a tool of President Bush to defend his national security policy and his war on terrorism and that Judge Alito is going to be a part of his efforts to arrogate powers to the executive branch. Who has been at President Bush's right arm for 5 years? It is Harriet Miers. She is the counsel to the President of the United States. She is his personal lawyer. She sits right by him. She has been involved in every one of these decisions about executive branch powers, National Security Agency wiretaps of al-Qaida telephone conversations. She has been part of all of that. You think they would have let her come through here? They say: Oh, we think she would be a fine nominee. What would they have done to her? Those in this Chamber who think she would have gotten a pass on those issues, raise your hand. And she knew that. That is why she withdrew herself. She wrote the President a letter and said: It has been insisted that if I come before the committee, I have to divulge my private conversations with you, the President of the United States, my advice to you on all these issues. It would violate attorney-client privilege. That is something I cannot do and will not do. I am in an untenable position. I am honored to serve you. I would like to continue to serve as your chief counsel, which she does today. But I ask you to withdraw my nomination. That is all that was about. Goodness. It indicates how desperate they have gotten to find complaints about this fine judge. By the way, Judge Alito has not been a part of any of this national security, Washington, inside-the-beltway stuff. Judge Alito has been sitting on a Federal bench in the Third Circuit--living in New Jersey-- outside Washington, DC. He has not had a single case I am aware of dealing with any of these national security or Presidential wartime powers issues. He comes at it as a skilled scholar, a person with a demonstrable record of fairness, and great intellectual capacity. I think when these cases come before him, as some may, he will decide them fairly. That is what everybody who knows him says. Another deal they keep talking about is the unitary executive. Have you heard that phrase? They say: Oh, he is terrible; he believes in a unitary executive. It is almost amusing. Senator Kennedy and others have used this phrase more than once: He believes in an all-powerful Executive. Now, you know no judge believes in an all-powerful Executive. You have to watch judges. They can strike down anything they want to. They are not going to give the President unlimited power. They are not going to give Congress unlimited power. But a good judge will follow the Constitution and will contain the executive if it goes too far and will contain the legislative branch if it goes too far. He or she will show personal constraint and not go too far as a member of the court. I think some need to remember that. Some have gone too far, in my opinion. This has not been about Judge Alito. It has been about an opportunity to attack President Bush. That is what everything seems to come down to here. That is why it is so political. They said he recommended, in defending a former Attorney General of the United States who had been sued personally for monetary damages, that they not defend the case on the basis that the Attorney General had absolute immunity from suit, but suggested he argue that he had a qualified immunity. The former Attorney General of the United States believed he had absolute immunity, and Judge Alito then, as a young lawyer in the appellate section of the Department of Justice, was obliged to make the argument, if it was defensible in any way, for absolute immunity, and he made it. That didn't mean he believed the Attorney General can never be sued. But I am going to tell you, the Presiding Officer has been a Governor of Virginia. People will sue for anything. If every Governor, if every Senator, if every attorney general can be hauled into court and be sued because they voted on some bill or did something and they have to pay out of pocket these judgments or lawyers to defend themselves, you can shut down the Government. We do have some cases where a Government official has absolute immunity and sometimes they have qualified immunity. I was Attorney General of Alabama. I had to defend the Governor and other officials in various lawsuits, some of them as bogus as $3 bills, but you have to go down there and defend it. Are you going to try the case for 6 months or, if he has immunity, do you assert the immunity and get the case dismissed in the beginning? You get the case dismissed. That is what any good attorney for the Department of Justice would do. He has never, in any way, supported an all-powerful Executive or an all-powerful executive branch that is ``unchecked by the other two branches of Government.'' Where did they come up with those kinds of ideas? This is what he said in a speech at law school about the case of ex parte Milligan: It expressed that ``the Constitution applies even in extreme emergency.'' The Constitution does apply in the case of extreme emergency. That is what Judge Alito wrote some time ago. He also said at the hearings: The Bill of Rights applies at all times, and it is particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis. That is what he told us under oath in committee. He also said: No person in this court is above the law, and that includes the President and that includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States. He also said this: Neither the President nor anyone else, I think, can authorize someone to . . . override a statute that is constitutional. . . . The President has to follow the Constitution and the laws, and it is up to Congress to exercise its legislative power. . . . The President has to comply with the fourth amendment, and the President has to comply with the statutes that are passed. So it is clear that Judge Alito and his opponents are not talking about the same thing when they talk about the unitary executive theory. According to Judge Alito, the ``unitary executive theory'' is not a theory that supports ``inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.'' Those items have to do with the scope of Executive power, which is an entirely different matter from this theory of a unitary executive. They have tried to take this theory of a unitary executive, which has been around a long time, and twist it to say it has something to do with whether the President has the power to wiretap you. Judge Alito clearly explained that the unitary executive theory has nothing to do with the scope of Executive power, the separation of powers doctrine, Presidential signing statements, or the constitutionality of independent agencies. As he stated during the hearings: The unitary executive doesn't have to do with the scope of executive power . . . I don't see any connection between the concept of a unitary Executive and the weight that should be given to signing statements in interpreting statutes. That is so correct and so weird that it even has to be clarified. Do we have any lawyers in this body? He goes on to say: I don't think I've ever challenged the constitutionality of independent agencies. Instead, this is what Judge Alito said about the unitary executive theory--this is what he said: [I]t is the concept that the President is the head of the executive branch. The Constitution says that the President is given the Executive power. Does anybody dispute that? I am quoting him. And the idea of the unitary Executive is that the President should be able to control the executive branch, however big it is or however small it is . . . It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of Executive power. It does not have to do with whether the Executive power that the President is given includes a lot of unnamed powers or what is often called inherent power. Isn't that a good statement? We have heard a lot of discussion for some time now about this problem of the President, and he is supposed to head the executive branch. We have all these agencies that act like independent nations. When the FBI and DEA get together and reach an agreement, they enter into memorandums of understanding, like a treaty. The agencies are both under the executive branch, under the President's authority, but they get so big for their britches that they think they have their own independence. There is a concern that the President is put in charge of the entire executive branch and is supposed to supervise all kinds of different federal agencies--the Immigration and Customs Enforcement Bureau, the Corps of Engineers, the Drug Enforcement Agency, the FBI, all of them. And then the Congress takes all the management of power and gives it to all the individual executive branch people so that the President can't even run the agencies, and then they blame him when things go wrong. That is the way we do things around here. I asked Charles Fried, who was a former Solicitor General of the United States--the person who argues cases on behalf of the United States before the U.S. Supreme Court--and had been a professor at Harvard Law School before that teaching judicial philosophy: Mr. Fried, you have been around a good while. You have heard this talk about the unitary executive. What is it? What does it mean to you? Boy, he just hit it right on. I was surprised. He even rebuked the members of the committee for misinterpreting the theory, he said this: I think what has been said about the unitary Executive in these hearings is very misleading. The unitary Executive says nothing about whether the President must obey the law. Of course he must obey the law. It talks about the President's power to control the executive branch. [It] is not an invention of the Reagan Justice Department, it was propounded in the first administration of Franklin Delano Roosevelt who objected to the powers of the Comptroller General who tried to fire a Federal Trade Commissioner, and who referred to himself [this Comptroller] as the general manager of the executive branch. That is the origin of the notion, the FDR administration. Some Comptroller General declared he was the general manager of the executive branch and Roosevelt didn't like it and he talked about that and said the executive branch is headed by the President. Here, America, the Government, is one. It cannot sue itself. Judge Edward Becker was aware of all these things. He is one of the most distinguished Federal appellate judges in America. He appeared at the committee with a group of his colleagues from the Third Circuit. They have served with Judge Alito, many of them for his full 15-year career--most of them at least 7 or more years--during his tenure on the Third Circuit Court of Appeals. For those who may not fully understand it, an appellate judge on the court of appeals handles the appeals from the trial courts where juries and witnesses testify. Everything that is said in those trials is written down. If somebody is unhappy with the result and thinks they did not get fair treatment, they will appeal to the court of appeals and the court of appeals will review the record, listen to the arguments, consider the law, and determine what the facts are in the case and rule whether they got a fair trial. If you are not happy with the court of appeals' decision, then you appeal to the Supreme Court and the Supreme Court does basically the same thing, it reviews the transcript and the record and considers the decision of the court of appeals that decided it. That is what Judge Alito has been doing for 15 years. That is what his life has been. He goes to work and reads transcripts. He is not listening to people's phone calls. He is not approving search warrants, such as State county judges, and magistrates judges, and city judges can do. Judge Alito has been up here doing the very same kind of work he would be doing on the Supreme Court. What do they say about how he performed in that role? This is what Judge Becker said about Judge Alito's temperament. Sam Alito: is gentle, considerate, unfailingly polite, decent, kind, patient and generous. . . . I have never once heard Sam raise his voice, express anger or sarcasm, or even try to proselytize . . . he expresses his views in measured and tempered tones. Pretty good job description of what you would want in a Supreme Court Justice, wouldn't you think? What about the question of integrity? What did Judge Becker, one of the great judges in the United States today, say about his integrity? Sam Alito is the soul of honor. . . .I have never seen a chink in the armor of his integrity, which I view as total. Judge Becker, on Sam Alito's intellect: He is brilliant, he is highly analytical, and meticulous and careful in his comments and his written work. . . . He is not doctrinaire, but rather open to differing views and will often change his mind in light of the views of a colleague. Isn't that a fine statement of what you would want in a judge? What about his approach to the law? They say he has views and he is going to let his views impact his decision-making process. What does Judge Becker, who served with him for 15 years and watched him and sat right beside him on that same court of appeals, say? He scrupulously adheres to precedent. I have never seen him exhibit bias against any class of litigation or litigants. . . . His credo has always been fairness. Judge Anthony Scirica, Chief Judge of that Third Circuit, has been on the bench for 20 years. This is what Judge Anthony Scirica said about him. Alito: is a thoughtful, careful, principled judge who is guided by a deep and abiding respect for the rule of law. He goes on to say Alito ``is intellectually honest.'' Let me insert here a parenthetical. I am telling you, those of us who tried a lot of cases before judges, want a judge who is honest intellectually and does not play games, does not twist facts, does not twist the law so he can justify a decision, and most people know which judges do that. Judge Scirica said that Alito: is intellectually honest, he is fair, he is ethical. He has the intellect, the integrity, the compassion and the judicial temperament that are the hallmarks of an outstanding judge. He goes on to say: His personal views, whatever they may be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind. All of us have some beliefs, unless we are a potted plant or already beneath the soil. But the question is, when you put a robe on somebody with a lifetime appointment, are they going to allow some personal belief they may have to not give the litigants before the Court a fair shake and allow their personal bias, their disagreement with the law, or their personal concern, to override what their duty is? Alito is absolutely not this kind of a judge. So what else does he say about him? Judge Alito is modest and unassuming. We had one of our Senators, remarkably, make this statement. It takes your breath away, really. If there is a case involving an employer and employee and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. Then he goes on to say if it is a prosecutor or defendant, ``he will rule for the prosecutor.'' That is not what these people who know him say. That is not what his record says and demonstrates. That is not the opinion of anybody who knows the man. Judge Maryanne Trump Barry, who was appointed to the court in 1999 by President Clinton, had previously worked with Alito in the U.S. Attorneys Office in New Jersey in the 1970s. This is what Judge Maryanne Trump Barry said about him. In the Attorney General's office, Samuel Alito set a standard of excellence that was contagious, his commitment to doing the right thing, never playing fast and loose with the record, never taking a shortcut, his emphasis on first-rate work, his fundamental decency [were clear]. She goes on to say: Judge Alito is a man of remarkable intellectual gifts. He is a man with impeccable legal credentials. He is a fair- minded man, a modest man, a humble man, and he reveres the rule of law. This is not a man who is going to get on the Supreme Court and rule against every defendant. As a matter of fact, there is a host of cases in which he ruled for the defendant, sometimes in dissent. He is certainly not going to rule for the employer if the employee has been wronged. Judge Ruggero Aldisert, appointed by President Lyndon Johnson, a Senior Judge who has written a number of books, who campaigned for John F. Kennedy and ran for office as a Democrat, said this about Alito. He is a remarkable man, I must say. Judicial independence is simply incompatible with political loyalties and Judge Alito's judicial record on our court bears witness to this fundamental truth. Judge Leonard Garth has been on the bench since 1973. Judge Alito, right out of law school in 1976, clerked for Judge Garth. Judge Garth found him to be: fiercely intelligent, deeply motivated, and extremely capable. While Alito was Judge Garth's law clerk, Judge Garth: developed . . . a deep respect for Sam's analytical ability, his legal acumen, his judgment, his institutional values, and, yes, even his sense of humor. . . . He said Alito: is an intellectually gifted and morally principled judge. Some may not like it. They are going to think there is something wrong with that. Judge Garth said he was a ``morally principled judge.'' He is a sound jurist, always respectful of the institution and the precepts that led to decisions in cases under review. He goes on to say: His fairness, his judicial demeanor and actions, and his commitment to the law, all of those qualities which my colleagues and I agree he has, do not permit him to be influenced by individual preferences or any personal predilections. Judge Garth did say he was very careful about those words. He knew some were suggesting that Judge Alito, who served for a time in the Reagan Department of Justice and had been unanimously confirmed by this Senate to the court of appeals, after being appointed by former President Bush--some were somehow saying that he might allow his views, whatever they are--and I have not seen any evidence that he has particularly strong political views--that he might allow them to influence him. He said that: . . . his commitment to the law, which my colleagues and I agree he has, do not permit him to be influenced by individual preferences or any personal predilections. If you served on a bench a long time with a judge, you will know whether that is true. This is a Democratic individual. Judge John Gibbons said this about it. He said that he was now representing some prisoners in Guantanamo, his law firm was, and he was not happy with the way they had been treated. But he said: I am confident, however, that as an able and legal scholar and a fair-minded Justice, he will give the arguments . . . careful and thoughtful consideration without any predisposition in favor of the position of the executive branch. So this Judge Gibbons had been on the bench and is now retired from the bench. He is now in private practice. His law firm, for reasons of which I am not aware, was representing prisoners in Guantanamo. He thinks they are entitled to trials, I suppose. But he said absolutely he trusted Judge Alito to give him a fair trial. He went on to add: Alito is a careful, thoughtful, intelligent, fair-minded jurist who will add to the Court's reputation as the necessary expositor of constitutional limits on the political branches of the government. Judge Tim Lewis, African American, served on the Third Circuit Court of Appeals for 7 years before going into private practice focusing on civil rights and human rights law. Judge Tim Lewis joked about sitting on the leftwing of the panel. Judge Lewis claimed he is: openly and unapologetically pro-choice and always has been. He said that: Judge Alito never had an ideological bent or a result- oriented demeanor or approach. He is: intellectually honest. Then he went on to add this, he emphasized it: If I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I can guarantee you that I would not be sitting here today. That is the first thing I want to make clear. He said Alito ``will not have any agenda-driven or result-oriented approach.'' That was one of the more remarkable panels we have ever had. Judge Alito has served with Republicans and Democrats--experienced judges, extraordinarily wise, very interesting to listen to, and their respect for him was remarkable. Indeed, the ABA panel member--an African American who represented the University of Michigan in the affirmative action admissions case which went before the Supreme Court--said that Judge Alito was ``held in incredibly high regard'' by the ABA. I will share a few words from Judge Alito himself before I wrap up. In his testimony, he was asked about cases that may come before him. I have to say nobody would dispute that in recent years he was more forthcoming than any nominee we have had in discussing openly how he would analyze a case, without going too far and prejudging it in any way. He said these words, which I think reflect good judgment and wisdom of judgment. By the way, we have a transcript, but all of this was without notes. He spoke so beautifully. He looked right at us. This is what he said: Good judges develop certain habits in mind. One of those habits in mind is to have a delay in reaching a conclusion until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that is made by an attorney who is appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately fully discuss the case. That is what we want in a judge. We want a judge who comes in with a philosophy and a demonstrated record of not rushing to judgment, not allowing any personal views he may have to influence him. He analyzes a case, but has a record that has won the respect of colleagues, liberals and conservatives, Republicans and Democrats, the bar, and his colleagues on the bench. He is an extraordinary nominee. I could not be more proud of him. He did a magnificent job in testifying. I never thought that anyone would testify to the level of John Roberts because he is such a skilled attorney and advocate. But this judge in his own way was every bit as good. He made us all proud, and President Bush should be very proud for submitting his nomination. I am pleased to support him. I will be voting for him, and I hope my colleagues will do the same. I thank the Chair. I yield the floor. I suggest the absence of a quorum.

Mr. SESSIONS. Mr. President, I thank our colleague, Senator Thune, for his excellent remarks. I know he cares deeply about the judiciary. I know that he talked about it a lot in his campaign. He is such a talented new Member of the Senate. There are many reasons he is here today, and I suggest that one of the reasons is because the individual he ran against--the former Democratic leader, Tom Daschle--led an obstruction of highly qualified judicial nominees. We are seeing that again today. Now this Democratic leader, Mr. Reid, has urged his colleagues to vote ``no'' in the party conference. Some have tried to say that is not so. But when the Democratic leader goes before his colleagues and urges them to vote ``no,'' it has an impact. It sets this as a political vote rather than allowing and encouraging each individual Member to vote their own conscience. It is going to reduce the number of votes that Judge Alito will receive because people try to follow their leaders when they can. But it is not right. This is a fabulous nomination. Judge Sam Alito is one of the finest nominees to ever come down the pike. He and Chief Justice Roberts were fabulous as witnesses, with incredible academic backgrounds and experience and a proven record of support from Democrats, liberals and conservatives, and a professional record and resume in both cases that are superb. But they do have a little difference of opinion, apparently, from some in the Senate. Senator Thune made reference to it. Judge Alito and Judge Roberts believe it is their duty to follow the law. It is their responsibility as judges to be neutral umpires, to not allow their personal, political, social, or religious views to impact their interpretation of the laws before them. That is what a judge is all about in the American legal system, for heaven's sake. What kind of threat is that when you have a judge who believes in that philosophy? Judge Alito's whole judicial approach to life and to his work is that a judge should put aside personal views and be a neutral, fair umpire, deciding the discrete case before the court, based on a fair and honest finding of the facts and an honest application of the law to those facts. That is what a judge is supposed to do. We have Members on the other side insisting that a judge's ideology ought to play a part in the judge's decisionmaking process. That goes squarely in the face of what our American legal system is all about. Why do we give our judges, let me ask, a lifetime appointment to the Federal bench? Why? Because we wanted them to be free from pressure and do their duty day after day, fairly and honestly finding the facts truly in the case and applying the law to those facts--not as Judge Alito said, to engage in implementing ``grand theories.'' I thought that was a good phrase. That is the kind of judge President Bush promised, and that is the kind of judge Senator Thune promised to support when he ran. That is the kind of judge I have believed in, in my career. I practiced for 15 years, for a long time, before Federal judges. I respect them. We had some magnificent Federal judges that I practiced before. I lost some cases and I won some cases, and every good lawyer does. But we all know one thing--that as long as that judge does his best, day after day, to honestly find the facts and apply the law, we can live with that. Your clients can live with that, too, even though they may be disappointed about the case. If we feel the judge is going to redefine marriage because he didn't like the way the State of Massachusetts defined marriage, and he is just going to say the Constitution somehow made reference to marriage, and a marriage now is no longer between just a man and a woman, but between two men or two women--this is going to be somehow found in the Constitution? And he is going to impose this on the people? What kind of power is that? Would five unelected judges, with lifetime appointments, who are utterly unaccountable to the American people, say that the phrase ``under God'' in the Pledge of Allegiance is not constitutional? Next, I suppose they will come in here with a chisel and right up there on the wall in this Chamber they will want to take out those big letters saying ``In God We Trust.'' I suppose that will be the next thing we have. Well, that is not called for in the Constitution. The Constitution simply says Congress shall make no law establishing a religion or prohibiting the free exercise of your religion. So this is a recent phenomenon to see such a hostile approach to public expressions of religious faith in America. That is not our heritage, not the way the people understood the Constitution; that is not what the Constitution says. But our colleagues don't like that. Is almost amusing, as we have gone through the committee process, to see them grasp in desperation to find something to complain about with Judge Alito. None of them could agree on what they didn't like. They bounced all over the place mostly. It sounded like they didn't like President Bush. They were having grievances about Abu Ghraib prison, which President Bush had nothing to do with. It was not the policy of the administration or the Army, and the people who abused those prisons are serving jail time today. (Mr. ALLEN assumed the chair.)

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank Senator Specter for his excellent leadership of the Judiciary Committee during both the Roberts and Alito hearings. He squarely addressed the tough issues in the first questioning. He made sure every member of the committee had full and ample opportunity to ask any question they wanted. We had 30-minute rounds. We had opening statements. We had the opportunity to have multiple rounds. Basically, I think the people could have asked questioned theses nominees for as long as they wanted. Of course, both Roberts and Alito were magnificent in their testimony, superb in their knowledge of the Constitution and the role of a judge in every possible way. That is why they have been favorably received by the American public which is why Chief Justice Roberts was confirmed, and why Alito will be confirmed. We have the greatest legal system in the world. It is the foundation of our liberties. It is the foundation of our economic prosperity. But the focus and the key ingredient of our legal system is an independent judge who makes decisions every day based on the law and the facts, not on their personal, political, religious, moral or social views. If we descend to that level, if we allow those social, political views to affect or infect the decision-making process, justice has been eroded. That is contrary to every ideal of the American rule of law. What is important today is Judge Alito's legal philosophy. It is not his political philosophy that is important. What is his legal philosophy? The core of his beliefs as a judge is that a judge should be careful, fair, restrained, and honest in analyzing the facts of the case and applying the relevant law to those facts. For what purpose? To decide that dispute, that discrete issue that is before the Court at that time and not to indulge, as he indicated, in great theories. That is not what a judge is about. So this is what American judges must do for our entire legal system to work. That is why I am so proud that President Bush has given us two nominees who can explain, articulate that role of a judge in a way every American can understand, relate to, and affirm. My colleagues, I am afraid, lack a proper understanding of this concept. It goes to the core of our differences over judges. They want judges, I am afraid, who will impose their own views, their personal views, on political issues in the guise of deciding discrete cases before them. Oftentimes, these are views that cannot be passed in the political, legislative process but can only be imposed by a judge who simply redefines or reinterprets the meaning of words in our Constitution, and they declare that the Constitution says that same-sex marriage must be the law of the land. They just declare that to be so. It only takes five unelected, life-time appointed judges to set that kind of new standard for America. Is there any wonder people are worried about that? It erodes democracy at its most fundamental level when political decisions are being set by judges with lifetime appointments, unaccountable to the public. So that is what we are worried about in so many different ways. There has been a trend in that regard, no doubt about it, by our courts. I think they have abused their authority by taking an extremely hostile view toward the expression of religious conviction in public life. They have struck down Christmas displays. Our courts have declared our Pledge of Allegiance to the Government unconstitutional because it has ``under God'' in it. By the way, for those of you who can see the words over this door, ``In God We Trust,'' it is part of our heritage, written right on the wall of this Chamber. This is an extreme interpretation of the separation of church and state. It is not consistent with our classical understanding of law in America. We had the Supreme Court, in this past year, redefining the takings clause. The takings clause says you can take private property for public use. It does not say you can take it for any purpose, like a private mall. They redefined the meaning because they thought that was smarter, better policy. But we don't appoint judges to set policy. As legislators, we have that responsibility. We are the people who will be voted out of office if we set bad policy. We are the ones meeting people every day and campaigning, trying to understand what the American people care about. That is not what judges do, at 80 years old, sitting over there reading briefs every day. This is an important issue. They declared that illegal aliens, despite State laws to the contrary, are entitled to benefits. They struck down every partial-birth abortion law. They have declared that morality--this is hard to believe but true in recent years--cannot be a basis for congressional legislation. Yet they contend that they may decide opinions and redefine the meaning of words and the understanding of words over hundreds of years based on what they declare to be evolving standards of decency. Is that a standard or is that just a license for a judge to do whatever they feel like doing at a given time? Evolving standards of decency, who can define that? Do they have hearings on what these standards are? These are important issues. The American people are concerned about it. President Bush was concerned about it. He promised he would appoint judges who show restraint, judges of great ability and integrity but who would show restraint and be more modest in the way they handle these cases. That is a fair standard. It is a legitimate issue for the American people to decide. He talked about it in almost every speech he made. That is what he promised to do, and that is what he has done. If we were to name judges, there is a legitimate concern that we would appoint judges who would promote some conservative agenda. I don't favor that; I oppose that. We don't want a judge to promote a liberal or a conservative agenda, although the plain fact is, if anybody looks at it squarely, they will see that the Court has actually been promoting a more liberal agenda. But we are not asking that a conservative agenda be promoted. We are asking that the courts maintain their role as a neutral umpire to decide cases based on the law passed by the legislative branch or State legislatures or passed by the people through the adoption of the U.S. Constitution. I don't understand the opposition to Judge Alito. He is such a fabulous nominee. It does appear, according to the New York Times last week, the 19th of January, that our Democratic leader, Senator Harry Reid, has urged his colleagues to vote no so they can, for political reasons, make it a political issue. We need to be careful about that. I am afraid there has been an attempt to change the ground rules of confirmations, to set standards we have never set before for nominees. That knife cuts both ways. If this is affirmed, then there will be more difficulty in the future for Democratic Presidents to have their nominees confirmed. Judge Alito has a remarkable record. He is the son of immigrants in New Jersey. His father was an immigrant to this country. He goes off to Princeton, gets his degree with honors, declines to accept an invitation to join an eating club that excludes women and others. I guess that was beneath the members of that club. He decided while he was there that he would just dine with everybody else, the scruff and the scrum that you find at Princeton. Then he went to Yale Law School where he finished at the top of his class, served as editor of the Yale Law Journal, participated in the ROTC at a time when that was not an easy thing to do, served in the Army Reserve for 8 years, and was offended that Princeton would kick the ROTC from their campus. I am sure he was not pleased when the rioters bombed the ROTC building at Princeton. He is an American. He believes in his country. He was prepared to serve his country, go where he was asked to go, if called upon in that fashion. He was chosen to clerk for the Third Circuit after he graduated, the court on which he now sits with Judge Garth. That is quite an honor. For 3 years he served as assistant U.S. attorney in that great large New Jersey law office for the U.S. attorney where he argued appellate cases. He did the appellate work. That is what he will be as a Supreme Court judge, an appellate judge, not a trial judge. That is what he did when he started out his practice. Then he went to the Solicitor General's Office of the Department of Justice, which is often referred to as the greatest job for an attorney in the world, to be able to stand up in the courts of the United States of America, particularly the Supreme Court, and to represent the United States in that court. He argued 12 cases before the Supreme Court. Not one-half of 1 percent of the lawyers in America have probably argued any case before the Supreme Court. He argued 12. That is a reflection of his strength and capability. Then he became U.S. attorney in New Jersey, which is one of the largest U.S. attorney offices in America, where he prosecuted the Mafia and drug organizations and was highly successful in that office and won great plaudits for his performance. He then was placed, 15 years ago, on the Third Circuit Court of Appeals. He has served as a circuit judge in the Third Circuit Court of Appeals for 15 years, writing some 350 opinions and participating in many others. He has had his record exposed to the world. What does it look like? Without question, it is a record of fairness and decency. Some of us on the conservative side have questioned the bar association. They are pro-abortion in their positions. They take liberal positions on a lot of issues, and some people have criticized them for that. They declare their ratings of judges are not based on that. But sometimes they have been accused of allowing their personal views to infect that rating process. How did the American Bar Association rate Judge Alito? They gave him their highest possible rating. They found that he was well qualified, unanimously, by the 15-member committee that meets to decide that issue. They interviewed 300 people, people who have litigated against Judge Alito as a private lawyer, people who have been his supervisors, people who have worked for him, people who had their cases decided by him. They go out and talk to these people. They will share with the American Bar Association privately what they might not say publicly. So they interviewed 300 people, and contacted over 2,000. They concluded that Judge Alito has established a record of both proper judicial conduct and evenhanded application in seeking to do what is fundamentally fair. They declare that Judge Alito was held ``in incredibly high regard.'' That was said by attorney John Payton, an African American who argued the University of Michigan quota case before the U.S. Supreme Court, not a rightwinger. He said they found the people they interviewed held Judge Alito in incredibly high regard. I asked him if he chose that word carefully. He said: I did; yes, sir. Judge Alito represents that neutral magistrate that we look for in our judges in America. His academic record is superb. His proven intelligence is unsurpassed. The experience he brings to the U.S. Supreme Court is extraordinary, including 15 years as an appellate judge doing in a lower court basically the same thing one would do at the Supreme Court level. This is what he said at the hearing:

Mr. SESSIONS. This is what he said: I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized openmindedness and fairness. He read the record in detail in every single case. He insisted on following precedent, both the precedents of the Supreme Court and the decisions of his own court. He taught all of his law clerks that every case had to be decided on an individual basis. He really didn't have much use for grand theories. That is what we need on the bench today. I think it would restore the public confidence. I am proud to support this nomination. Mr. President, I respect Senator Leahy. He is an excellent advocate for the Democratic side. I was pleased he supported Judge Roberts, and I am not as thrilled he is not supporting Judge Alito. It was a process that was a bit rough at times, but fundamentally I think the judge was able to have his day in court. I yield the floor.

Mr. SESSIONS. Mr. President, I ask unanimous consent for 30 seconds to wrap up.

Mr. SESSIONS

Mr. SESSIONS. Reserving the right to object.

Mr. SESSIONS. I have no objection.

Mr. SESSIONS. I understand the Senator is recognized?

Mr. SESSIONS. I was just curious about what the unanimous consent agreement was that was just entered. I was not on the floor at that time and would be interested in having an opportunity to speak later. Was there unanimous consent on procedure?