Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Thursday, June 9, 2005, at 9:30 a.m. in Dirksen Room 226. Agenda I. Nominations: Terrence W. Boyle, II to be U.S. Circuit Judge for the Fourth Circuit; Brett M. Kavanaugh to be U.S. Circuit Judge for the District of Columbia; Rachel Brand to be an Assistant Attorney General for the Office of Legal Policy; Alice S. Fisher to be an Assistant Attorney General for the Criminal Division. II. Bills: S. 491, Christopher Kangas Fallen Firefighter Apprentice Act, Specter, Leahy; S. 1181, Which is Section 8 of Openness Promotes Effectiveness in our National Government Act of 2005, Cornyn, Leahy, Feingold. III. Matters: Senate Judiciary Committee Rules.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Thursday, June 9, 2005, for a committee hearing to receive testimony on various healthcare-related bills pending before the Committee. The hearing will take place in Room 418 of the Russell Senate Office Building at 10 a.m.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Subcommittee on Bioterrorism and Public Health Preparedness, be authorized to hold a hearing during the session of the Senate on Thursday, June 9, 2005 at 2 p.m. in SD-430.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Review of General Aviation Security, at 11 a.m., on Thursday, June 9, 2005, in SR-253.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition and Forestry be authorized to conduct a hearing during the session of the Senate on Thursday, June 9, 2005 at 2 p.m. in SR-328A. The purpose of this hearing will be to review the nominations of Mr. Walter Lukken and Mr. Reuben Jeffries to be commissioners of the Commodity Futures Trading Commission and also for Mr. Jeffries to be chairman of the Commission.

Mr. SESSIONS

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS

Mr. SESSIONS. I thank the Senator for his wisdom and his fine comments today.

Mr. SESSIONS. If the Senator will yield, I will follow up on that. I remember President Clinton nominated quite a number of justices, judges, who were active members--some lawyers--for the American Civil Liberties Union. If you look at the American Civil Liberties Union Web site, they favor and believe the Constitution allows the legalization of drugs; that there cannot be a law against legalization of drugs. They oppose all pornography laws--even child pornography laws--on their Web site. We confirmed Marsha Berzon from California. She was chairman of the litigation committee of the ACLU. There were quite a number of other members of the ACLU. We gave them a fair hearing. We asked their views. Some were answered satisfactorily to my view and some were not. Fundamentally, the question was, will you follow the law of the Supreme Court? Will you be faithful to those laws? Do you have a good reputation among your colleagues? Have you a record of integrity and achievement? Most of those judges, virtually all of them, were confirmed.

Mr. SESSIONS. I thank him, first, for his insightful remarks. It is certainly appropriate and important that we distinguish between an American citizen's right to speak and say things that may be on their heart at a given time and maybe later they are not so sure they agree with. But we don't want to intimidate Americans and say you can never be a Federal judge if you don't say anything but vanilla statements your entire life. I thank him for his wise insight there. It does seem we have a double standard here. It seems there has just been a deliberate effort to go back and sift through, bit by bit, line by line, speeches and statements and writings of nominees to try to take them out of context and make them appear to be extreme when her record is one of mainstream, effective service. Justice Ginsburg was not a nominee, certainly, that I would choose to nominate for the Supreme Court, but the Senate did not bar her from service on the Court, the highest court in this land, because of her extrajudicial statements that you just mentioned that are quite unusual, that she made in law review articles and such, even though her thoughts and comments were out of the mainstream. I was not there at the time and the Senator was. But was it not true that, at her confirmation hearing, Justice Ginsburg swore under oath she would follow the law, and was it not also true that during her service on the D.C. Circuit Court of Appeals she often voted with Judge Bork and other conservative judges? In other words, just because she made these statements, once she put on that robe and read the briefs of the parties, she had some record that indicated she was committed to the rule of law?

Mr. SESSIONS. I couldn't agree more with the Senator from Kentucky. That whole insight and principle cannot be lost here. We can't expect people to be just ``Milquetoast'' human beings and never engage in debate over important issues in America and never make a provocative statement or they cannot be confirmed to the Federal bench. Frankly, as one who practiced a lot of law, and I note the distinguished Majority Whip has, as well, the true test of a judge is: Will they study the law and will they be faithful to it? Will they read it and study it? But with regard to these statements, wouldn't you say that compared to what you have mentioned, and some of the statements made by some of the Clinton nominees, that Justice Brown's statements are mild, indeed?

Mr. SESSIONS. Mr. President, I ask if the Majority Whip will yield for a question?

Mr. SESSIONS. I couldn't agree more. As I recall from the letter that was sent to Senator Hatch, then-chairman of the Judiciary Committee, all of her colleagues on the California Court of Appeals, which is just below the Supreme Court of California, have supported her, and four of the six sitting Justices on the California Supreme Court have overwhelmingly, strongly advocated for her confirmation. It seems to me the idea that she is out of the mainstream is farfetched and stretched. I will ask one more question of the Senator. Isn't it true and isn't it sad that in this attempt to portray this nominee and others in a negative light, that there has been, unfortunately, a tendency to take things out of context? And isn't it true that some of these statements, that might seem a bit strange or hard to understand, are not so hard to understand in the context of the entire remarks? Would the Senator agree that is a problem today in the Senate?

Mr. SESSIONS. Mr. President, may I take a few minutes to go over some of the concerns that have been raised about Justice Janice Rogers Brown's rulings on some cases? As the Senator from Kentucky and I discussed, some of her statements have been taken out of context. It is not fair. We ought to be fair to nominees. We ought to be sure their reasoning, their thought processes, the context of what they are doing, is brought to the attention of the American public before we start twisting it to make them look like someone who is not in the mainstream. I will talk about a couple of things; there are many we could talk about. I will mention a few cases specifically that have been referred to by the attack groups that are attempting to put down these nominees, and by Senators who have picked up on it--maybe they are not lawyers, maybe they are--but perhaps have not fully comprehended what the case is about or have been careless with the facts. One of the charges some have heard, I think made again today, is that Janice Rogers Brown opposes all zoning laws. That is not true. That is absolutely not true. One Senator, I believe Senator Dorgan, said she believes that zoning laws are the equivalent of theft and are unconstitutional. That is not true. That is not a fair characterization of her record. This is what the San Remo case was about. First, she never said the zoning laws were unconstitutional. But the San Remo case in California came before her. It involved a Draconian, overreaching zoning law that forced hotel owners--I know the Presiding Officer has had some association with real estate--forced hotel owners who wanted to convert low-income residential units to hotel units to pay a large fee or replace the residential units that would be lost. It was a takings case. It was a question of whether this zoning law had taken away the ability of private property owners to use their property to the highest and best use. That is a big deal in America today. Even the liberal Supreme Court of California was troubled by it. It was a 4-to-3 vote. Justice Brown was one of the three, but she was not the only one who dissented from this rule. Her dissent was consistent with U.S. Supreme Court precedent on property. The classic case, not too far from the State of Georgia, was North or South Carolina. The person bought a lot on the beach, paid a lot of money for this, was going to build a dream home on the beach. They came along and said: We are going to rezone this and you cannot build a house on the beach. He put all of this money in a lot that he was going to build his dream house on and they said: You can keep the sands, Mr. Property Owner, but you cannot build a house on it. The Supreme Court of the United States of America said--and the same principle I believe applies in California--that this was an effective taking of the value of that property. If the Government wanted to take it and make it a wildlife refuge, they ought to take the property and pay them the fair market value for it. But what the zoning guys wanted to do, you see, is just say: You cannot use it. You cannot do anything with it. You have to do with it what we want you to do with it, but we are not going to pay you a dime for the ability to have that property set aside for what we want it to be set aside for. That is why people who are concerned about property rights in America are upset about the abuse of zoning. But normal zoning goes on every day. And there is not one shred of evidence that Janice Rogers Brown opposes all zoning. In fact, she, as I said, had two other judges join with her in that important case. Justice Brown, in the case, complimented the State of California for having a laudable regulation to try to provide more housing opportunities for low-income individuals. She said that in her dissent, but noted that the California takings clause precluded the Government from achieving that goal by police power regulation. Another case that still bothers me--I mentioned it yesterday; and it is worth talking about again--is the Aguilar case. Senator Boxer and I think maybe others on the floor have said that Justice Brown, an African American, the daughter of a sharecropper from rural Alabama-- she grew up not too far from where I grew up--had said, in her opinion, that it was OK for Latinos to have racial slurs uttered against them in the workplace, that that was the position of Justice Janice Rogers Brown. Now, this was the case of Aguilar v. Avis Rent A Car System. It involved a court injunction that barred a manager of the company from using various racial epithets in the future, raising grave first amendment concerns as a prior restraint. Justice Brown, in her dissent, stated: ``Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.'' As to the specific slurs, she called them: ``disgusting, offensive, and abhorrent.'' In her dissent, however, she relied on the precedent of the Supreme Court of the United States, in expressing her concern about an injunction that placed an absolute prohibition, a prior restraint, on speech. Again, the court in this case was divided, 4 to 3. One of the dissenters who joined with her was the liberal icon, Justice Stanley Mosk--her colleague on the bench who is recognized as one of the great, most prominent liberal judges in America--because speech is important. I offered into the Record Monday an article by Nat Hentoff in which he dealt with this particular case. He is a great civil libertarian lawyer. He has committed his life to American civil liberties. He believes in free speech. He said the majority opinion in Aguilar was an outrage, that it was totally wrong, that she was exactly correct, that this was a prior restraint of free speech that could not be done under these circumstances. So saying that Justice Brown believes it is OK for Latinos to have racial slurs uttered against them in the workplace is not a fair thing to be saying about her. Senator Boxer also argued against Janice Rogers Brown, saying that Brown ``argued that messages sent by an employee to co-workers criticizing a company's employment practices was not protected by the First Amendment. In other words, you can't use your e-mail to write anything about your employer to another employee.'' That is what Justice Brown has been accused of doing in her role as a judge. But the truth of the case is quite different from that. Senator Boxer is apparently referring to Intel v. Hamidi. It involved a disgruntled employee who flooded Intel Corporation's servers with over 200,000 spam E-mails, a costly disruption of the business. It raised serious nuisance and trespass to chattel issues. The question in the case was whether you could commit a trespass to chattel through electronic communications. The California Supreme Court said no because there were no damages to the computer system nor impairments to the way it functioned. Justice Brown's dissent noted that Intel had invested millions of dollars to develop and maintain its computer system to enhance the company's productivity and had a right to protect that property from unauthorized abuse by 200,000 spam e-mails. It was a 4- to-3 vote, again. Two justices on the California Supreme Court joined with her. This is not an extreme position to take, for heaven's sake. She again found herself on the side of liberal Justice Richard Mosk. He argued that the injunction should have been upheld because he was intruding upon Intel's proprietary network and his e-mails were equivalent to, according to Judge Mosk, ``intruding into a private office mail room, commandeering the mail cart, and dropping off unwanted broadsides on 30,000 desks.'' That is what the liberal Justice Mosk said in agreeing with Janice Rogers Brown. So, goodness, it is a sad thing that we have to deal with these kinds of distortions of a fine justice's record. If this is all they can find to complain about, statements that are perfectly normal and proper, then there must not be much out here against this nominee. One Senator says: ``If a minority claims they are being discriminated against, she is nowhere to be found.'' Well, first of all, she is a minority. She left Alabama, I am sure, in some part, because when she was young, segregation was afoot and discrimination was very real to African Americans. She went to California. She commenced her legal career and her education and became a member of the California Supreme Court. But he accuses her of not being found on discrimination. But what about her lone dissents? She authored a lone dissent in People v. McKay, where an African American man was riding his bicycle the wrong way on a street and the police stopped him, searched him, found drugs and prosecuted him. She said that was racial profiling. She was the only one who said that. Who was standing up for someone who could have been a victim of discrimination? Janice Rogers Brown. Another Senator said that ``she favors the powerful over the powerless.'' But how about her lone dissent in In re Visciotti--only she dissented in this case--where she said a defendant's death sentence should be overturned, because the defendant did not have an adequate counsel, he was given ineffective assistance of counsel. She was very vigorous in her dissent in explaining why she thought it was inadequate and why she thought this individual deserved a new trial. Well, those facts, to me, do not indicate we have a justice who is out of the mainstream or a justice who is not willing to defend individuals with no power, no prestige, no money, those who deserve a fair hearing by a court. It is clear she is willing to give it to them, to give them that fair hearing, and to dissent even if six other justices on the liberal California Supreme Court do not agree with her. So the other justices did not agree, but she stood up for these people. That is her record. That is her heritage. She is a wonderful, wonderful nominee. I am pleased she is up. Hopefully, we will get her nomination confirmed today, and she can take her place on the federal courts of the United States. It will be a good day for America and a proud day for the people of Alabama who have seen her do well. Mr. President, I see my colleague from Mississippi, Senator Lott. I yield the floor.

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

Mr. SESSIONS

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

Mr. SESSIONS. What kind of lady is this? She graduated from UCLA, one of our Nation's finest law schools. In February of 2004, the alumni of that not-so-conservative law school presented Janice Rogers Brown with an award for public service. In recognizing Justice Brown, her fellow UCLA alumni, the people who know her, did not criticize her and say she was an extremist. They didn't say anything like that. At UCLA law school, where they gave her an award, they said: Janice Rogers Brown is a role model for all those born to prejudice and disadvantage, and she has overcome adversity and obstacles and, since 1996, has served as a member of the California Supreme Court. . . . The professional training she received at the UCLA School of Law has permitted her, even now when decades remain to further enhance her career,-- Yes, we need to see her career be enhanced by this court of appeals appointment. to have already a profound and revitalizing impact upon the integrity of American jurisprudence. I will repeat that. They said: . . . even now, when decades remain to further enhance her career, [she has been shown] to have already a profound and revitalizing impact upon the integrity of American jurisprudence. I think that is a good description. Despite her incredible intellect, work ethic, determination, and resultant accomplishment, she remains humble and approachable. That is not the Janice Rogers Brown you hear her opponents describe. I will take the words of the people who know her and who have actually studied her record over the rhetoric of special interest groups who are not the least bit concerned, it seems to me, about being fair in their description of the nominee. She spent 8 years as a deputy attorney general in the Office of the California Attorney General, where she prepared briefs and participated in oral arguments on behalf of the State's criminal appeals; she prosecuted criminal cases and litigated a variety of civil issues. Her keen intellect and work ethic made her a rising star on the California legal scene, and in 1994, Governor Pete Wilson tapped her as his legal affairs secretary. She served in that capacity until 1994, when she was nominated and confirmed as an associate justice on the California Third District Court of Appeals. In May of 1996, to honor her for her superior performance on the appellate court, Governor Wilson elevated her to the California Supreme Court, where she has performed admirably. Since she was appointed to the California Supreme Court, a couple of things have happened which demonstrate she is doing her job and doing it well. During the 1998 elections, she was retained with 76 percent of the vote, receiving a higher percentage of the vote than any other judge on the ballot and in 2002, she authored more majority opinions than any other Justice on the Court. The people of California who actually know the law and study the law and who have not been brainwashed by attack sheets that come out, by liberal groups, support her. For instance, Gerald Ullman, a California law professor, has expressed public support for this nominee. His statement sums up what we ought to consider with regard to Justice Brown's nomination. Let me quote it: Although I frequently find myself in disagreement with Justice Brown's opinions, I have come to greatly admire her independence, her tenacity, her intellect, and her wit. It is time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than ``hot button'' issues of the past. We have no way of predicting where the hot button issues will be in years to come, and our goal should be to have judges in place with a reverence for our Constitution, who will approach these issues with independence, an open mind, a lot of common sense, a willingness to work hard and an ability to communicate clearly and effectively. . . . Janice Rogers Brown has demonstrated all these qualities in abundance. That is what Professor Ullman said. Her colleagues and former colleagues also support her. A bipartisan group of Justice Brown's current and former judicial colleagues, including all of her former colleagues on the Court of Appeals, Third Appellate District, and four current members of the California Supreme Court, also have written in support of her nomination. Twelve current and former colleagues noted in a letter to the committee that: Much has been written about Justice Brown's humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the Federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be extremely intelligent, keenly analytical, and a very hard worker. We know that she is a jurist who applies the law without favor, without bias, with an even hand. That was sent to Chairman Orrin Hatch in October 2003. Ellis Horvitz, a Democrat and one of the deans of the appellate bar in California, has written in support of Justice Brown, noting that: In my opinion, Justice Brown [possesses] those qualities an appellate judge should have. She is extremely intelligent, very conscientious and hard-working, refreshingly articulate, and possessing great common sense and integrity. She is courteous and gracious to the litigants and counsel who appear before her. That was another letter to Chairman Orrin Hatch. The praise for Justice Brown and her performance on the bench goes on and on. Sure, some do not agree with her politically, but they recognize and appreciate her approach to jurisprudence. She is a restrained jurist who refuses to change the definition of marriage or to strike down the Pledge of Allegiance or throw out the ``three strikes and you are out'' law in California. She is the kind of judge President Bush promised to support. Again, I think she has done a terrific job on the Supreme Court of California. I am proud she is from Alabama. I am sorry the discrimination she believed she and her family faced in our State was, I am sure, part of the reason they left Alabama to seek a fair life. She went to California and has taken advantage of the opportunities given her. She achieved a tremendous record. It is an honor for me to speak in support of her nomination. I yield the floor.

Mr. SESSIONS. Mr. President, I was talking about Justice Janice Rogers Brown and her record of courage and ability on the Supreme Court of California. I note an article by Nat Hentoff. It is in the Jewish World Review. Mr. Hentoff is a noted civil rights lawyer, of courage and independence, who writes with clarity and is a civil libertarian who believes in American civil liberties, who has a long record of it. He is not someone who is slavishly part of any political agenda and is willing to speak the truth wherever he sees it. Sometimes I agree with it; sometimes I don't. But he has written an article about the filibuster of Janice Rogers Brown. He talks about the ``Action Alert'' from the National Association for the Advancement of Colored People that ``accuses [Janice Rogers Brown] of having extreme right-wing views'' and ``issuing many opinions hostile to civil rights.'' She has been a victim of civil oppression and segregation. She is a true champion of civil rights, as I think I indicated in my remarks. He goes on to show ``how prejudicially selective the prosecution of her is by the Democrats, the NAACP, People for the American Way, and her other critics.'' He says: To my knowledge, not one of her attackers has mentioned the fact that in the case of People v. McKay, Brown was the only Supreme Court justice to instruct her colleagues on the different standards some police use when they search cars whose drivers are black: This is Justice Brown's quote: There is an undeniable relation between law enforcement stop-and-search practices and the racial characteristics of the driver. . . . The practice is so prevalent, it has a name: ``Driving While Black.'' Does that sound like somebody who is hostile to civil rights? He goes on to criticize the Action Alert and the selective comments that are made there. He says: Sen. Ted Kennedy has accused Justice Brown of hostility not only to civil rights but also to ``consumer protection.'' But in Hartwell Corp. v. Superior Court (2002), she declared that water utilities could be sued for having harmful chemicals in the water that result in injuries to the residents of the State who drink that water. Also in People ex rel. Lungren v. Superior Court, Justice Brown affirmed the authority of California's attorney general to haul into court faucet manufacturers who include lead in their faucets. Another charge by the NAACP in its ``Action Alert'' is that Justice Brown dissented from ``a ruling that an injunction against the use of racially offensive epithets in the workplace did not violate the First Amendment.'' Mr. Hentoff then says this: I know this case--Aguilar v. Avis Rent A Car System Inc.-- well, having covered it from the beginning and interviewed lawyers on both sides. Brown dissented from an astonishing decision by the California Supreme Court that authorized the trial judge to actually put together a list of words that would be forbidden for all time in that workplace, even if uttered out of the presence of employees. That is what Mr. Hentoff says about this opinion of the majority that she dissented from. He goes on to say: This extreme gag rule on speech turned the First Amendment upside-down because as Stanley Mosk, a much-respected civil libertarian on that California Supreme Court, emphasized: ``The offensive content of using any one or more of a list of verboten words cannot be determined in advance.'' As Brown said plainly and correctly: ``We are not dealing merely with a regulation of speech, we are dealing with an absolute prohibition--a prior restraint.'' This could ``create the exception that swallowed the First Amendment.'' Do you see what we are talking about here? That is what has been going on on the floor of the Senate that is so distressing to me. Let's lay it out here on the table. Justice Janice Rogers Brown, according to one of the great civil liberty lawyers in America, Nat Hentoff, was defending first amendment free speech, joined by one of the most liberal members of the California Supreme Court to defend free speech. What did they accuse her of? They said that she approved of using racial slurs against Hispanics. Now, that is beyond unfair. It is beyond unfair. It is beyond decency and integrity, and it is not right. It is wrong. That is what we have been doing to nominees here to justify the opposition because fundamentally they believe in a classic rule of law and don't believe in judicial activism. Hentoff goes on further and talks about another case. As for this justice's hostility to civil rights and liberties, there was her dissent in In Re: Visciotti in which she declared the sentence of John Visciotti--convicted of murder, attempted murder, and armed robbery--be set aside because of his defense lawyer's incompetence. In another capital murder case (In Re: Brown) she reversed the death sentence of John George Brown because the prosecutor subverted the defendant's fundamental right to due process by not disclosing evidence that could have been exculpatory. Not a word about those two cases was in the NAACP ``Action Alert'' or the New York Times editorial [or the Sacramento Bee]. I ask unanimous consent to have printed in the Record the article of Mr. Hentoff of May 9, 2005, entitled ``Filibustering Janice Rogers Brown.''

Mr. SESSIONS. Mr. President, I ask the question: How did a wonderful person and a wonderful nominee, such as Judge Janice Rogers Brown, become so controversial? What is it that is going on here? She served 8 years on the California Supreme Court. She has served on the Third Appellate District Court of Appeals of California. Every member of that court of appeals with whom she has served has written in support of her nomination. She was reelected to the California Supreme Court with 76 percent of the vote. I think there were four other judges on the ballot. She had the highest vote of any of those judges. California is certainly not a right-wing State. She grew up in my home State of Alabama, not too far away from my hometown in a small town area of Greenville, AL. She is the daughter of a sharecropper. A sharecropper is a person who does not own land but farms a part of somebody else's property. He pays the landowner with some of the produce and keeps a little of the produce for himself and his family. That is how she grew up. Somehow, as a teenager, she moved off to California, worked her way through college and then law school. She then worked for the attorney general's office of the State of California in which she represented the State on appeals of criminal cases. She wrote the briefs, she argued the legal questions, she participated in the trials of criminal cases, but I think most of her time was spent writing the appellate briefs to the court of appeals. By the way, of course, supreme court justices, like appellate judges, do not try cases, like the big cases we see in the newspapers. They simply review the trial record of cases that have been tried. They determine whether a fair trial occurred and whether the judgment should be affirmed or reversed and a new trial held, that sort of thing. That is what she has been doing on the California Supreme Court. That is exactly what she would do if she were appointed to the court of appeals in the DC Circuit. Her judicial philosophy is absolutely mainstream. She agrees with the President of the United States, President George W. Bush. She is in harmony with his view of the role of courts and the rule of law in America. Make no mistake, this is a big question. He campaigned on that issue around the country. President Bush talked about the courts and about the role of courts in America. He talked about what we should do to strengthen the rule of law in this country, how important it was to him, and he promised to appoint judges who would show restraint and not utilize their opportunity on an appellate bench to redefine the meaning of words, to have it say what they want it to say so they can impose their political views through a court ruling. He said, I do not believe in that kind of jurisprudence. In fact, it has not been the heritage of our country for 200 years, but in recent years it has become the vogue in law schools and in certain areas of the country, California being one of them, frankly, to have an activist judiciary. Judges are praised for being bold and stepping out. We had one judge under President Clinton who was confirmed to the court of appeals from California. He had been in the court system and he said, well, it is the duty of a judge to act when the legislature would not act. That is what the definition of activism is, a judge who believes he has a duty to do something if he thinks the politically accountable bodies in our country do not; that it is perfectly all right for a judge to act if the legislature does not act. I will tell America, and this is important, when a legislature does not act, it made a decision not to act, and those legislators are responsible to the people. If they are irresponsibly failing to deal with a problem, they will be removed from office eventually. A Federal judge is given a lifetime appointment. They are not accountable to the public. We cannot cut their salary. So what we need is judges who understand the role of the judiciary in the American system. We need judges who show restraint and who understand that America is built on a political system and a constitution that should be faithfully followed and the political decisions ought to be made by those people in rooms such as this, in the State legislatures and in the Congress. We are accountable to the people who elect us. Make no mistake about it, empowering judges to carry out political agendas is an anti-democratic act. It undermines the power of the people of our country. Many of the complaints made against Janice Rogers Brown are because she adopted and does believe in the view of a judiciary that the American people value, that President Bush values and that was affirmed in this past election when he won. That is what she believes. Now, the Court of Appeals in the Ninth Circuit Federal court in California a few years ago was reversed by the U.S. Supreme Court 27 out of 28 times. They reviewed 28 cases from that court and reversed it 27 times. The New York Times said a majority of the members of the U.S. Supreme Court considered the California court to be a rogue circuit. So this is not an itty-bitty matter. People have been saying, oh, this is politics, this is Democrats and Republicans fussing and it is a little political discussion which does not amount to much, and what does it have to do with us. Well, the truth is, the issue is simple, but it is far more important than party politics. I am sure some in this body vote for political reasons and have not given a lot of thought to the judiciary and what is important, but we are dealing with the role of the judiciary in America. As a Senate, when we deal with confirmations, it is all right to ask somebody about their political views or to look at their political views, but we do not vote for and against nominees based on that. I voted for 95 percent of President Clinton's nominees. I did not agree with their political views on many things. I felt most of them who came through, certainly the ones I voted for, were committed enough to the rule of law that I could vote for them. Some I had doubts about, but I gave the President the benefit of the doubt and voted for them. A few I opposed. What was the deal? It is not their politics that counts. It is their judicial philosophy. That is what counts. What is their view of the role of a judge? What is their understanding of what law means in this country? There are people who are teaching postmodernism in our law schools today. Some of them have been called advocates of the critical legal studies idea. And what do they say? Nothing is really true; one cannot look at a statute and interpret it. One can look at that statute and they can make it say whatever they want it to say and justify that. It is a dangerous philosophy. People have fought for our country, died for our country, and in large part they died to preserve the rule of law. Maybe they did not even believe in the war, but they were called to go and they went and served their country because they were legally called to serve. They did their duty. It has been the cornerstone of this country's strength since its founding. As I travel the world, as I have the opportunity to do as a Senator on occasion, I am more and more convinced that our legal system, our respect for law, is what makes this country great. If someone signs a contract, they can expect it to be enforced. If they do not pay their house note, someone will come and take the house. But because of that, a person can borrow $200,000, a middle-class working American, and pay it back at 6 percent interest over 30 years. Now, tell me where that happens in another place in the world? It is part of the legal system that is so important, and we have a dangerous trend in this country. We have members of the U.S. Supreme Court quoting the European Union as if that would affect how they interpret a statute passed by a State legislature or the Congress or the Constitution ratified in 1789. What possible value could that have? This is a dangerous trend. Judges are getting to the point where they feel they have to solve difficult questions; that the legislatures cannot get them figured out quick enough to satisfy them so they want to solve them. It is not good. It erodes public respect for the courts because more and more they realize they are not deciding these cases on what the law says or what the Constitution says but what they think. Who cares what they think? We do not pay judges to think. We pay judges to rule on the law. It is a big deal and this is what it is all about. Do not make any mistake. The left understands it. They understand this absolutely, and the courts have been the one branch of Government they have been utilizing to advance agendas the American people are not supportive of--in fact, oppose. But if someone can get a judge to say the Constitution says a marriage can be a union among whatever, then that is it. What does one do then? What does it take to have a constitutional amendment? It takes a two-thirds vote of both Houses of Congress and three-fourths of the State legislatures. So judges have great power. If they abuse it, it is a big deal. I think that is why we are seeing the attack on a number of our nominees that I think is not fair. It goes beyond what is right. In fact, they have sort of become pawns in this battle over the nature of our judiciary. I have watched these groups closely over the years, and I have to tell you some of these leftwing groups that create these attack ads and attack pieces on these nominees ought to be ashamed of themselves. It is not legitimate or fair what they do. They dig into their records, every statement they have ever made, their personal history, the cases they have had, the speeches they have made, and they try to find anything they can. They will take one sentence. Maybe there are two paragraphs of qualifying explanation and they will take one sentence out of context and say that represents a certain thing and therefore this nominee should be voted down. But we are Members of the Senate. We are the ones who took an oath to do our duty to enforce the Constitution, to fairly judge nominees the President sends up here. That is our responsibility. We cannot pass that off to some group, some polling data, some newspaper editorial. So they take a bit here, a bit there, a statement, a word, a case, a circumstance--they take it out of context and distort it, many times dishonestly; dishonestly, many times deliberately doing so, to try to create a caricature of this nominee. Then they ask the people of the Senate to vote against them. Vote against them. But we should not do that. That is not what the Senate should be about. Janice Rogers Brown sees things different from some people; particularly, I guess, in California. She has a more classical understanding. She made a speech one time in which she questioned the validity of the welfare state and whether it helps people. So they say she is against all poor people and welfare. She questioned overreaching regulations. They say she is against all regulations. She is a throwback. She doesn't believe in any government regulation. Whereas she has ruled on hundreds of cases affirming government regulations, for Heaven's sake. But some regulations do overreach. Is there any doubt about that? One of them dealt with rental property in California. The owner had long- term leases and decided to convert them to short-term hotel work. He wanted to convert the building to a full-fledged hotel. Do you know what they told him in California? Well, we know this is your property, Mr. Owner, but, you know, we want to help poor people and we want you to pay money to create low-income housing before you can do that. Before you can do that you have to pay this money or create some other housing. What kind of thing is this in America? They say she doesn't believe in government regulations. That doesn't sound like a decent regulation to me. So she opposed that, citing Supreme Court precedent. I am going to tell you, the Constitution of the United States provides someone's property cannot be taken from them without just compensation having first been paid. That is what the law is and what it ought to be. Private property is protected in our Constitution as much as free speech. The left talks about free speech, but we will talk about a case or two that they have accused Justice Brown of acting improperly on and all she was doing was affirming clearly and unequivocally the right of free speech in America. But the left doesn't really believe in free speech. They have an agenda they want to promote. It is big government in domination of our lives in any number of different ways. I think this lady is a superb justice. She writes beautifully. She cares about America. She grew up in a land of segregation. They have accused her of not favoring civil rights. She has been discriminated against herself. She is an African American who was raised in segregated Alabama and went off to California and had a tremendous success story. The judges who write about her or lawyers who write about her say she is brilliant, intellectually honest, always thinking to do the right thing. She speaks with clarity and integrity. She is highly qualified. She doesn't agree with the leftwing agenda politically and she said so, but that doesn't impact her legal decisions. That is what is important: How do you rule in cases? A judicial philosophy that shows restraint, let me say, is far less dangerous than a judicial philosophy that justifies expanding power. I think this nominee, with her experience as a prosecutor and understanding criminal law will do an excellent job on the federal bench. Some critics complain about her sole dissents. She was a sole dissenter in a death penalty case, saying that the lawyer was inadequate. No other person complained about her dissents, presumably because she was some rightwing person, but she believed this defendant had not been properly defended by his lawyer, so she was the sole dissenter in that case. She dissented in another case, a criminal case, in which a person was stopped because he was riding his bicycle the wrong way on a street, and she believed it was a racial profile stop. They didn't have a basis to stop that person to begin the search that resulted in the discovery of illegal drugs. That was a dissent, also. So what are these dissents about? You don't dissent in America? Judges dissent all the time. Every time you have a 5-to-4 decision of the U.S. Supreme Court you have four dissenters. There are many 8-to-1 decisions and one judge dissents. That is nothing unusual. Some of these dissents she participated in were joined in by liberal members of the California Supreme Court. Also, I think it is important for us to note that in 2002 she was called on to write the majority opinion for the California Supreme Court more often than any other member of that court. So how is she such an out-of-the-mainstream person? She wrote more majority opinions in 2002 than any other member of the court. What happens is, when a court gets together and discusses a case before they finally vote and make their opinion, they see how the judges analyze the case. If it is a majority or a unanimous decision one way, someone is selected to write the opinion for the majority. If it is 5 to 4, someone is selected to write the opinion for the five, the majority. Sometimes there will be four different dissents, maybe one dissent with all the rest joining in. Judges can do it any number of different ways. This idea that she is out of the mainstream because she has dissented on cases is a total mischaracterization of her record. They have gone back and dug through her records and tried to find numbers and ideas and concepts that put her in a bad light. They ignore the fact she wrote the majority opinion in 2002 in more cases than any other of the nine justices on the California Supreme Court. There are a lot of different cases in which she has been criticized. A lot of great dissents have been issued in this country. There is the dissent of Justice Harlan in the separate but equal case of Plessy v. Ferguson. Was that a good dissent? I think it was a good dissent. By the way, in the zoning case her critics talk about, alleging that she was taking an extreme position on that case, that vote in the California Supreme Court was 4 to 3. Only four judges were for it; three were against it. She wrote the dissent. I thought it was a great dissent. Several times, Senator Boxer and others have said Justice Janice Rogers Brown said it was okay for Latinos to have racial slurs uttered against them in the workplace. That is a terrible charge. That is not true. Sometimes we wonder if there is a lawyer in this whole building. Is there anyone who knows how the legal system actually works? The case they referenced was the Aguilar case. A court injunction or court order barred a manager from using racial epithets in the future, raising grave first amendment concerns to tell someone in our country, you cannot say something in the future. You can say what you said in the past was wrong and you can be sued for it, you can be put in jail, perhaps, if it amounts to a criminal action; but the courts in this country have always, as a result of free speech concerns, been very reluctant to enter into prior restraint, as the judges call it, to stop someone from saying something in the future. You pay a price if you say the wrong thing in the future, but to order them never to say something is a very dangerous thing. The court split on that case, 4 to 3. Yes, she was a dissenter, but also dissenting with her in that case was the liberal icon of California jurisprudence, Stanley Mosk, her colleague on the bench. This was a 4-to-3 decision representing a very important idea. She specifically condemned the language. She said people could be sued, they could have penalties imposed. She was concerned about a court injunction saying to somebody, they could not say certain words in the future. That is what the question was. Any legal scholar in this country would agree that is a difficult matter. We ought to be careful before we pass injunctions saying people cannot say something. A prominent liberal jurist, Justice Mosk agreed with her on that point, as did three of the justices on that court. One of the things one of the groups has attacked her about, and I don't know if the Senators have raised it yet--I wouldn't be surprised, is the use of stun belt on a criminal defendant in court. We are familiar with the recent case in the Atlanta, GA, courthouse, where a violent defendant overpowered the guard, took a gun, shot a bunch of people, ran off. There was a national uproar over what to do about it, why that shouldn't have happened, and how we ought to take steps to prevent this in the future. That was a good, healthy debate. There is a device called a stun belt that can be placed on a defendant. Simply by pushing a button, apparently, one can immobilize a subject wearing a stun belt. In recent years, we cannot bring criminals into the courtroom in prison garb. You cannot bring a prisoner in a courtroom and sit them before a jury in handcuffs. That would bias the jury, the courts have said, in their effort to be fair to defendants. I was a prosecutor; I remember when that started happening. So we had to sit them up there in the witness box without any chains or handcuffs. You never knew what they were going to do. There were marshals and sheriff's deputies standing on alert to see if this guy was going to make a break. They came up with this idea to put a stun belt around a defendant, under their clothes, that could not be seen. This guy was referred to as being psychotic, violent, dangerous in any number of ways and the California Supreme Court said, you cannot make him wear it. It made him nervous. I hate to say that was a silly opinion, but it was, in my view. I bet if the decision was made after the Atlanta courtroom incident, they may not have ruled the same way. But one justice on that court saw it correctly: Janice Rogers Brown. She dissented from that decision. That was the right thing to do. Absolutely the right thing to do. I salute her for it. She should not be voted down for those issues. There are many of these examples of distortions of her record we could talk about. One interesting case in which Justice Brown authored a majority opinion deals with the question of affirmative action. It is the kind of case that gets someone in trouble with certain leftwing groups in this country but is consistent with the law of America and the law of the State. She did the only thing appropriate. It is the High-Voltage Wireworks case. In this case, the California Supreme Court unanimously concurred in Justice Brown's opinion. They say she does not believe in affirmative action, quotas, and things of that nature. This is one of the cases they cite. It was a unanimous supreme court decision case. It demonstrates her ability to follow the Constitution and Federal law. California proposition 209 was passed by the people of California. It added a provision to the California Constitution that provided: The states shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contract. The people from California passed that. There was a minority contracting program in San Jose that said contractors bidding on city projects must utilize a specified percentage of minority and women contractors or document efforts to include minority and women contractors in their bids. Every judge who reviewed the case, including the trial, appellate, and supreme court, agreed that the San Jose program constituted preferential treatment within the meaning of proposition 209. Why, certainly it did. Justice Brown's opinion demonstrates her firm commitment to the bedrock principles of civil rights. She noted: Discrimination on the basis of race-- Remember, she is an African American. Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Contrary to the assertions of liberal smear groups, Judge Brown is not opposed flatly to all affirmative action programs in all circumstances. She has specifically acknowledged that ``equal protection does not preclude race conscious programs.'' Certain race- conscious programs can be approved under the law. And she favorably cites Supreme Court decisions establishing the affirmative duty to desegregate where there has been a showing of a prior discrimination, that you can issue orders, then, if there has been a proof of discrimination. She provided a historical discussion of all of American equal protection law. It was part of an extremely well-reasoned opinion. But it has made some of those on the left unhappy, you see, because she is not in lockstep for all these items, she is not in agreement with everything. She thinks there are limits to what the Government can do in this area, and should do, consistent with the Constitution of the United States. There are many other cases she has ruled on. I will simply add this, in conclusion, that she has been a sterling justice, a justice who believes in law. She has approached each case she has dealt with from a perspective of trying to find out what the law is and how to do the right thing about it. She has courage and had the courage to stand up in the face of a legal system that has not been supportive of classical understandings of how we interpret statutes, how we enforce the law, and what the law means. She has been in an agenda-driven environment where judicial activism is more prominent in certain areas of the country. The fact she has dissented and has raised questions to defend private property and to question turning criminals loose on a rapid basis, as some have, and those kinds of things, speak well of her. What is important mostly is that she has a judicial philosophy that is consistent with the judicial philosophy our country has had, our heritage of law. That is what she believes in. That is what she has given her life and career to. She loves the law, and she cares about it. She cares about it enough to speak out if she thinks things are going wrong. Her views are consistent with the American people. President Bush campaigned on these issues aggressively in this last election. He won 52 percent of the vote. It is the first time in many years a Presidential candidate received over half the votes in this country. I think if you took on the question of judicial activism and the feeling of the American people with regard to judges who exceed their bounds of power and start legislating from the bench rather than making decisions, he would have had much higher support. Senators who joined this body defeating incumbents or winning open seats--the winners of those seats--consistently have been Senators who have talked to the people of their States about the problem of an overreaching judiciary and the need to make sure the judges we have are talented, smart, proven men and women of integrity and ability, but men and women who will show restraint on the bench, who will follow the law as written, even if they may not personally agree with it. Because if they want to write the laws, they ought to run for office and see if they can get elected. Maybe the reason people who got elected did not pass a law they wanted is because the American people did not want that law, their constituents did not want it, and that is why they did not pass it. So they are not empowered to impose their personal views by subtly manipulating words and language and phrases and other things to make the case come out the way they want it to come out. That is not what they are empowered to do. I think Janice Rogers Brown represents the classical view of law, the mainstream view of law, which I will admit is under attack today in this country. It was a big issue in the campaign. President Bush took his case to the American people, and he was reelected on it. That was a big issue in his election. There is no doubt about it. The American people want judges with the philosophy of Justice Rogers Brown, her legal philosophy. What she says politically somewhere in a speech is not important, as long as her judicial philosophy is such that she shows and has demonstrated she will be faithful to the Constitution and to the law, whether or not she agrees with it. That is what we in the Senate need to be doing in our confirmation process. We need to ask ourselves: This may be a view by a nominee I agree with or I do not agree with, but will they enforce the law? Because we cannot expect every nominee to agree with us on our religious values, our moral values, or our political beliefs. Judges are not expected to do that. You do not expect that. It is not running for office. They are not going to be voting on these things. You want people who understand the law and who will be fair and show intelligence and diligence and a determination to get it right. That is what she said in her testimony. She said: My goal is to get it right. I believe this is a good nominee. I believe she will be a tremendous addition to the Court of Appeals for the United States. I am proud she is a native of my home State, and I am honored to have these moments to speak on her behalf. I thank the Chair and yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Today, with a great sense of honor and respect, I rise to pay tribute to Mrs. Jessie Hale Downs for her humane and charitable service to the city of Birmingham, AL. In 1944, Mrs. Hale and her husband, Jimmie Hale, cofounded the Downtown Jimmie Hale Mission in Birmingham. These two individuals founded this mission to help rescue scores of individuals from homelessness and addiction. On November 17, 1944, Jimmie Hale died, leaving his young wife widowed and expecting their first daughter in January of 1945. The death of her husband left her with nothing, so Mrs. Hale was taken in by a friend, and 2 months later she gave birth to a daughter. Later, Jessie married a man who had been aided by the Jimmie Hale Mission, Joe Downs. Unfortunately, he never overcame his addiction and after 2\1/2\ years of marriage and the birth of a daughter, he left the family. Nevertheless, Jessie Hale Downs remained resolve in her dedication to the Jimmie Hale Mission, and she refused to let her late husband's dream die. Mrs. Downs is gifted with a great sense of leadership and a spirit of love for humanity. She served as the executive director of the Mission for 46 years and even today travels to churches and civic meetings to share the story of the Jimmie Hale Mission and what they have to offer. Because of her unwavering dedication to the Mission, which began as a lone storefront chapel ministering to the men on the streets of downtown Birmingham, the Mission has now expanded into a six-facility, holistic-approach ministry in central Alabama committed to helping people break the chains of addiction and homelessness. While Jimmie Hale envisioned the ministry, Jessie Hale Downs saw the Mission to fruition. Now, at the age of 88, Mrs. Downs is the matriarch and heartbeat of the Jimmie Hale Mission. I would like to offer thanks for a life lived to serve the less fortunate. The community of Birmingham and the State of Alabama are better off because Mrs. Jessie Hale Downs has lived among us.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I take a moment to bring attention to an important step that was taken yesterday in the Senate Committee on Health, Education, Labor, and Pensions. On Wednesday morning, the HELP Committee unanimously passed S. 518, the National All Schedules Prescription Electronic Reporting Act, a bill designed to help states combat the growing scourge of prescription drug abuse and diversion. I begin by thanking Senator Enzi, our chairman, for his excellent support in bringing this bill, the National All Schedules Prescription Electronic Reporting Act, before the committee for consideration. I also thank and commend the bill's original cosponsors, Senators Kennedy, Durbin, and Dodd, and their staffs, for contributing to the productive, bipartisan process of developing this legislation. The abuse and diversion of prescription drugs is a tremendous public health issue for our nation, and a growing one. An epidemic that first attracted public notice as a regional crisis has now spread to touch every kind of community, from major cities to the smallest rural hamlet. Prescription drugs now rank second only to marijuana in the incidence of abuse. Over 31 million American adults and adolescents have, at one time, abused pain relievers, and the number of first-time abusers has increased 336 percent since 1990. As appalling as the numbers are, we can not permit them to obscure the human tragedy of drug abuse and dependence, or the toll that drug diversion takes on communities. In the case of individuals who become addicted to prescription medications, the addicted too often fall from the productive ranks of society into unemployment, disability, hospitalization, or even death. They may be drawn into criminal activities that lead to incarceration. Their families and communities suffer along with them. Those who engage in drug diversion feed an insidious black market that makes dangerous drugs available to children, as well as adults. On a societal level, taxpayers bear much of the expense of abused or illegally diverted drugs, and, subsequently, of treating the medical consequences of misuse and addiction. I find particularly concerning the recent Partnership for a Drug-Free America finding that prescription medications are emerging as the most rapidly growing category of drugs abused by America's teenagers. According to this national study, released April 21st, approximately one in five teenagers--that is over 4 million kids nationally--has abused prescription painkillers, and 37 percent report that close friends have done so. Another 10 percent of teens have abused prescription stimulants, such as Ritalin. Surveys show that this dismal pattern is driven by, according to teens' own assessment, ease of access. The establishment, by the states, of programs to monitor prescriptions for controlled substances can help curb inappropriate, illegal access to these potentially dangerous drugs. At the present time, 20 states have operating prescription drug monitoring programs. In general, monitoring programs collect, from dispensers, a basic set of information on prescriptions that are issued for controlled substances. In the most effective programs, providers, including physicians and pharmacists, may request the prescription histories of their patients, permitting them to avoid providing controlled substances to ``doctor shoppers'' seeking multiple prescriptions to feed addiction or for diversion to the black market. These monitoring programs, appropriately designed, not only help healthcare providers to better deliver appropriate, effective treatment of pain and other conditions that require the use of ``scheduled'' drugs, but also provide an important tool that permits doctors to identify and, if appropriate, refer for treatment patients whose prescription history suggests that they are at high risk of addiction. In addition, they offer an opportunity to repair the physician- patient relationship in the face of a growing addiction problem that has created an atmosphere in which physicians fear that prescribing ``high risk'' medications could inadvertently injure patients or lead to civil or criminal liability or professional discipline. This situation has created yet another class of victims, patients who are finding it too difficult to obtain timely, effective treatment for pain and other legitimate medical needs. Much to their credit, physicians have recognized the tremendous potential here and have been the leading advocates for national legislation supporting the broader adoption of well-designed prescription drug monitoring programs. I would like to particularly commend the American Society of Interventional Pain Physicians, and Dr. Laxmaiah Manchikanti, their CEO, for the tremendous effort they have put forth to educate members and the public regarding the need for this legislation. ASIPP has, in recent days, been joined in their strong advocacy for the NASPER bill by the American Society of Anesthesiology and the American Osteopathic Association, and I expect that others will soon follow. Those physicians who have stepped forward to advocate for a balanced and effective solution to this problem are truly acting in a manner consistent with the highest ideals of the medical profession. The bill we are considering today, National All Schedules Prescription Electronic Reporting Act, establishes a federal grant program, to be administered by the Department of Health and Human Services, that would support both the creation of new state programs and the improvement of existing ones. Participating programs would be designed according to a ``best practices'' model, and would adopt applicable health information technology standards. It also addresses the important barriers that continue to hamper the full realization of these programs' potential: the fact that there are not enough of them, and in a time when patients regularly cross state lines seeking treatment, existing program can not yet effectively share information across state lines. This bill provides states with the resources and guidance they need to make important progress toward minimizing the abuse and diversion of prescription medications while ensuring patients' access to timely, effective treatment, and I urge you to join us in supporting it.

Mr. SESSIONS

Mr. SESSIONS. Let me ask this, with the presence of the distinguished former chairman of the Judiciary Committee in the Chamber. At that very moment when it was to the Republican interests to initiate a filibuster, if we chose to do so, at that moment, when he was, on principle, opposing it, the very Members of the opposite party, leading Senators on that side--Senator Leahy and Senator Kennedy and Senator Feinstein and Senator Boxer--were making speeches saying how bad the filibuster was and how it should not be done.

Mr. SESSIONS. I hope Senator Hatch will remain because he has been, much of the first years of my career in the Senate, chairman of the Senate Judiciary Committee. I think it is important to drive home what you have been discussing. I think it is so important. First, I will say to the distinguished assistant majority leader how much I appreciate his comprehensive history of debate in the Senate. I think it is invaluable for everyone here. But I remember the Berzon and Paez nominations. Both of those were nominees to the Ninth Circuit. Judge Paez, a magistrate judge, declared that he was an activist himself, as I recall, and even said that if legislation does not act, judges have a right to act. And the Supreme Court had reversed the Ninth Circuit 28 out of 29 times one year and consistently reversed them more than any other circuit in America. And here we had an ACLU counsel, in Marsha Berzon, and Paez being nominated. There was a lot of controversy over that. We had a big fuss over that. We had an objection. I voted for 95 percent of President Clinton's nominees, but I did not vote for these two. I remember we had a conference. I will ask the assistant majority leader--we were having House Members saying: Why don't you guys filibuster? People out in the streets were saying: Don't let them put these activist judges on the bench. We had our colleagues saying it. I did not know what to do. I was new to the Senate. Do you remember that conference when we had the majority in the Senate, and President Clinton was of the other party and we were not in minority like the Democrats are today--we had the majority--and Senator Hatch explained to us the history of filibusters, why we never used them against judges, and urged us not to filibuster those Clinton nominees?

Mr. SESSIONS. Isn't it true that Trent Lott, the Republican majority leader, sought cloture to give Berzon and Paez an up-or-down vote, and those of us who opposed Berzon and Paez, as the Senator from Kentucky did, voted for cloture to give them an up-or-down vote and then voted against them when they came up for the up-or-down vote?

Mr. SESSIONS

Mr. SESSIONS. That is good. And I apologize for not being here and hearing your remarks to begin with. I would not have asked that.

Mr. SESSIONS. Mr. President, I want to share a few thoughts at this time. There is no doubt that there has not been maintained in this body a successful filibuster against a President's nominee for a judicial office until this last Congress when the Democrats changed the ground rules, as they stated they were going to do, and commenced systematic leadership-led filibusters against some of the finest nominees we have ever had. People say: Well, you people in the Senate are upset, and you are fractious, and there is too much of this, and you guys need to get together. But it was not the Republicans who started filibustering judges. And it was a historic change in our procedures when the Democrats started doing it. It caused great pain and anguish. When you have somebody as fine as Judge Bill Pryor, who I know, from Alabama, the editor and chief of the Tulane Law Review, a man of incredible principle and intelligence and ability, and who always wants to do the right thing, to hear him trashed and demeaned really hurt me. I am so pleased to hear today that those who have reached the compromise have said that we will give Bill Pryor an up-or-down vote. He had a majority of the Senate for him before, a bipartisan majority. At least two Democrats voted for giving him an up-or-down vote and would have voted for him, I am sure, if he had gotten that up-or-down vote. We would have had that done a long time ago except for having, for the first time in history, a systematic tactic of blocking those nominees from an up-or-down vote through the use of the filibuster on judges. Priscilla Owen made the highest possible score on the Texas bar exam, got an 84-percent vote in Texas, was endorsed by every newspaper in Texas--a brilliant, successful private practitioner--and they have held her up for over 4 years. The only thing I can see that would justify holding her up was that she is so capable, so talented, that she would have been on a short list for the Supreme Court. She should not have been blocked and denied the right to have an up-or-down vote. Justice Janice Rogers Brown from California was on the ballot a few years ago with four other judges in California. She got the highest vote in the California ballot, 74 percent of the vote on the California ballot. California is not a rightwing State. She got three-fourths of the vote. And they say she is an extremist? Not fair. It is just not fair to say that about these nominees. It was said by the Senator from California that they did not get 60 votes, they did not make the cut. When has 60 votes been the cut? The vote, historically, since the founding of this Republic, is a majority vote. Lets look at that. The Constitution says that the Congress shall advise and consent on treaties, provided two-thirds agree, and shall advise and consent on judges and other nominees. Since the founding of the Republic, we have understood that there was a two-thirds supermajority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done. But there was a conscious decision on behalf of the leadership, unfortunately, of the Democratic Party in the last Congress to systematically filibuster some of the best nominees ever submitted to the Senate. It has been very painful. And to justify that, they have come up with bases to attack them that really go beyond the pale. I talked to a reporter recently of a major publication, a nationwide publication. People would recognize his name if I mentioned it. I talked about why I thought the nominees had been unfairly attacked, their records distorted and taken out of context, and they really were unfairly misrepresenting their statements, opinions and actions. She said: Well, that's politics, isn't it? Are we in a Senate now where because somebody is on a different side of the aisle, have we gotten so low that we can just distort somebody's record--a person, a human being who is trying to serve their country-- we can do that to them? I don't think that is right. I don't think we should do it. But I do believe we are sliding into that and have been doing so. For example, it was said recently by Senator Boxer that Judge Gonzales--now Attorney General of the United States--said that Priscilla Owen was an unconscionable activist. He did not say that about her. He did not. He has written a letter to say he did not. He testified under oath at a Judiciary hearing and said he did not. What he said was he reached a certain conclusion about what the legislature meant when they passed a parental notification statute, and based on that, he himself, he said, would have been an unconscionable activist if he voted other than to say that the child did not have to notify her parents. Other members of the court reached a different conclusion about what the legislature meant with the statute, and he did not accuse anyone else of being an unconscionable activist. They have been running ads on television saying that as if it were a fact. It is not. Surely, we should have the decency not to do those kinds of things. An allegation just made about Janice Rogers Brown was that she criticized the free speech of an employee for criticizing their boss. That is not exactly what the case was. What the facts were--that employee sent out 200,000 e-mails on the boss's computer system attacking the boss and the company. It was a disgruntled employee. How much do you have to take, clogging up the system with spam? One of the most liberal justices on the California Supreme Court joined with her in that view. That is not an extreme position. She wasn't saying a person could not criticize her boss. Another comment that was really troubling to me--and I have to say it because Janice Rogers Brown, although very firmly established and highly successful in California, grew up in Alabama, a small town not too far from where I grew up. She left Alabama as a young teenager and went to California and ended up going to UCLA Law School and being awarded the distinguished graduate award there. She is a wonderful person. I have taken an interest in her history. She grew up in discrimination in the South. That is one reason they left. A sharecropper's daughter, she was not raised in an environment where African Americans were treated equally. That is a fact. They say now that she said it is OK to use racial slurs against Latinos. You have heard that comment. She said that Janice Rogers Brown said that. That is not what she said. That is absolutely not the facts of that case. It is really sad to hear that said, and the facts would demonstrate that that claim against her is a totally unfounded charge. Also, with regard to her position on the Supreme Court of California, she wrote more majority opinions in the year 2002 than any other judge on the court. When a majority reaches a view about the case, and a majority on the court decides how it should come out, they appoint someone to write the opinion for the majority. She wrote more majority opinions than any other justice on the court. How could she be out of the mainstream of the California court? I felt really compelled to make some comments about her and her record. Mr. President, I will conclude tonight by once again recalling that when the Republicans had the majority in 1998, right after I came to the Senate in 1997, President Clinton was nominating judges. Two of them were very activist judge nominees for the Ninth Circuit Court of Appeals, the most activist court in the United States--the California, West Coast Court of Appeals. It had been reversed 27 out of 28 times by the U.S. Supreme Court, I believe, the year before that and consistently was the most reversed court in America. Those two nominees, Berzon and Paez, which I strongly opposed--and I think a review of their record would show they have been activist and should not have been confirmed. But Orrin Hatch said in our Republican conference: No, let's don't filibuster judges; that is wrong. I was a new Member of the Senate, as the Senator from California said she was. He stepped up and said: Don't filibuster. We need to give them and up-or-down vote. The then-majority leader, Trent Lott, moved for cloture to give them an up-or-down vote. I voted to give Berzon and Paez an up-or-down vote, and we did that. We invoked cloture, brought them up. The Republican majority brought up the Clinton nominees, and we voted them up. They were both confirmed, and they are both on the bench today. Our record was one that rejected filibusters. Now, what happened after all of this occurred? It was a huge alteration of the Senate's tradition and, I think, the constitutional intent. I think the Constitution is clear that a majority is what we were looking for. So we were faced with a difficult decision of what to do and how to handle it. I compliment Senator Bill Frist, the majority leader of the Senate. He systematically raised this issue with the leadership on the other side. He provided every opportunity to debate these nominees so that nobody could say they didn't have a full opportunity to debate. He researched the history of the Senate, and he presented positions on it and why the filibuster on judicial nominees was against our history. He urged us to reach an accord and compromise. All we heard was no, no, no, you are giving a warm kiss to the far right, you are taking steps that are extreme, you are approving extreme nominees, people who should not be on the bench, and we are not going to compromise and we are not going to talk to you. After considerable effort and determination and commitment to principle, Senator Frist moved us into a position to execute the constitutional option, also referred to as the nuclear option. It has been utilized, as he demonstrated, many times by majority leaders in the past. It is not something that should be done lightly, but it is certainly an approved historical technique that has been used in this Senate. As a result of that, and the fact that they were facing a challenge, I think it was at that point we began to have movement on the other side, and they realized this deal was not going to continue as it was and that, under the leadership of Senator Frist, we were not going to continue this unprecedented, unhistorical action of filibustering judicial nominees. So it was out of that that we had the agreement that was reached today. With that constitutional option hanging over the heads of a number of people, a serious reconsideration took place. I think a number of Senators on the other side have been uneasy about this filibuster. They have not felt comfortable with it, but it was leadership-led and difficult, apparently, for them to not go along. Although, I have to note that Senator Zell Miller and Ben Nelson consistently opposed it and supported the Republican nominees each and every time as they came forward. So out of all of this, we have reached an accord tonight. It has led to what appears to be a guarantee that three nominees, at least-- Priscilla Owen, Janice Rogers Brown, and William Pryor, who is sitting now as a recess appointee on the Eleventh Circuit--will get an up-or- down vote. I believe all three of them will, and should be, rightfully, confirmed as members of the court of appeals of the United States of America. They will serve with great distinction. I am sorry we don't have that same confidence that Judge Saad or Judge Myers will also get a vote. They may or may not, apparently. But we don't have the same confidence from this agreement that they will. I think they deserve an up-or-down vote also. But today's agreement was a big step forward. Maybe we can go forward now and set aside some of the things of the past, and we will see Members of the other side adhere to the view of those who signed the agreement that a filibuster should not be executed except under extraordinary circumstances. Certainly, that is contrary to the position that they were taking a few months ago and certainly the position being taken last year. So progress has been made. I salute particularly the majority leader who I believe, through his leadership and consistency, led to this result today. I am thrilled for Judge Pryor and his family because I know him, I respect him, and I know he will be a great judge. I am excited for his future. Mr. President, seeing no other Senator here, I yield the floor.