Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to conduct a hearing in Room 628 of the Dirksen Senate Office Building, Friday, March 7, 2003, from 9:30 a.m. to 12:30 p.m.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I, too, wish to join my distinguished colleague, Senator Hatch, in saluting President Bush for his courage and commitment to principle, his steadfastness, his integrity, and his moral approach to foreign policy. He believes the United States has a high calling in the world. We must meet high standards, and high standards mean that we try to work with our neighbors when possible, but we do not submit ourselves to requirements from other nations that keep us from doing what is the right thing. I am proud of what the President has done. I am proud of the way he has handled himself. I thought at his press conference last night, facing all the media in America and giving them his best shot, he handled it with great skill, dignity, integrity, and wisdom. So I am really proud of that. We are now entering the final stages of diplomacy. There is still an opportunity for Saddam Hussein to take advantage of the days and hours he has been given by the President to change his ways, to totally disarm and abdicate his country in order to avoid a war. But the answer to what will happen is now in Saddam Hussein's hands. This great Nation has committed itself to a course. This Senate has backed the President overwhelmingly. The House of Representatives has also done so. Last year, when this Senate was in the majority of the other party, we voted 77 to 23 to authorize this President to take action if need be. I have sensed no retreat from that support by any Member. In fact, if we voted today, the vote would probably be larger. I don't know precisely what Hans Blix will report today in the U.N., but I will tell you one thing he will not say. He will not say that Saddam Hussein is in compliance. He will not say that Saddam Hussein has taken advantage of the 15-to-0 vote on U.N. Resolution 1441 last fall to disarm his country. Had he done that, we would not be facing a military conflict today. He has not done it, and we should not, in my view, continue to give extra time to him and reward him for his failure. If we have had any difficulty in this process, it is from nations that seem to be unwilling to send a clear message. Some people say: You are not respectful of the United Nations. I have spoken on this issue for quite a number of years in the Senate. I have expressed my concern that we are Gulliver on the world scene and that many nations seem to desire to tie us down with a thousand different strings so that our Nation is unable to act in our interest or the world's interest. We want to listen to other nations, but we cannot allow the American power to be tied down in that fashion. We had an interesting hearing before the Armed Services Committee, and our distinguished chairman, John Warner, is here today. He is one of the wisest men on military affairs this country has ever produced. James Schlesinger, former Secretary of Defense and former Secretary of Energy, talked about the United Nations. The problem with the U.N. is not that they are bad, not that we should not try to work with them; but they cannot be depended on. They are not capable of functioning rationally under stress. They are basically a dysfunctional organization when it comes to action. There are a lot of reasons for that. It is the way the U.N. is created. You have nations such as Russia and France permitted to veto any resolution. We have a resolution dependent now on countries that are not really engaged in the area: New Guinea, Angola, or Cameroon can cast key votes. They are not spending $3 billion a year, as we are, to keep Saddam Hussein in his box. Secretary Schlesinger said this: . . . this is a test of whether the United Nations--in the face of perennial defiance by Saddam Hussein of its resolutions--indeed of his own resolutions . . .--will, like the League of Nations over half a century ago, turn out to be simply another institution given to talk. He went on to say this: Will the United Nations prove as feckless as the League of Nations? Mr. Chairman, in 1935, Mussolini invaded Abyssinia. The League of Nations took note of this challenge to international order. Day after day, week after week, the League deliberated what to do. These sessions went on endlessly. After each session, there was a press conference. After some weeks, one of the reporters summarized the situation as follows: ``On the surface, very little is happening--but beneath the surface, nothing is happening.'' I think we are in a situation where the U.N. may be incapable of acting. This Nation must act if we are to maintain the integrity of the resolution of the U.N.

Mr. SESSIONS

Mr. SESSIONS. Does the Senator, based on his broad experience in affairs, conclude that this country has the unique history of being a genuinely religious country, but a country that knows how to handle different religions and faiths? As a matter of history, is it not almost unique in the history of the world how we have been able to affirm religious faith and, at the same time, avoid sectarian violence?

Mr. SESSIONS. I thank the Chair. Madam President, first, I appreciate the remarks of the Senator from Alaska. It was a very effective and thoughtful speech about a very important subject, and that is the Ninth Circuit Court of Appeals and how this Pledge of Allegiance matter highlights the problems we have had there for a long time. I express my appreciation for a wonderful analysis that the Senator from Alaska made. The Senator laid it out very well. I chair the Subcommittee on Courts of the Senate Judiciary Committee. I have looked at this issue since I have been in the Senate. I was present in Atlanta the day the Eleventh Circuit Court of Appeals was created. The old Fifth Circuit Court of Appeals was divided. It went from Miami to Texas, from El Paso to Miami. It was too big and it could not work well. The judges themselves believed that a division was necessary. The Congress approved. Not one single judge today who is on the new Eleventh Circuit and was on the old Fifth Circuit, would ever want to try to put that monstrosity back together. And it was not nearly as big as the Ninth Circuit. We had hearings several years ago during which we called chief judges of several circuits as witnesses. Those judges told us they did not want to see the size of their court get any bigger than 10 or 12 judges. When it got any bigger than that, collegiality broke down, the ability to maintain consistency of opinions broke down, and the ability to promote harmony and consistency in law broke down. The Senator from Alaska is exactly correct, the Ninth Circuit is a particular problem. It is out of the mainstream of American law, and that is one reason I urged and pleaded with this Senate not to put more left-wing activist judges on the Ninth Circuit. I dealt with the question of Judge Marsha Berzon and Judge Paez. We did not filibuster those nominees. We debated those nominees. I voted against those nominees. Both of them were confirmed. Both of those judges, by all apparent indication, voted for this opinion that struck down the Pledge of Allegiance in this country. Both of those judges, Berzon and Paez, in separate opinions have voted to strike down California's three- strikes-and-you're-out law, the law that broke the back of a surging crime rate in California, and we have seen the crime rate go down. Why? Because they targeted repeat dangerous offenders. In a Rand Cor- poration study of prisoners in California, the prisoners admitted they were involved in as many as 200 crimes per year. So when you target repeat offenders under the three-strikes-you're-out law, it brings the crime rate down. The Ninth Circuit has real problems. They have no business striking down California's law. California has a right to set the penalty standards in their State. The problems in the Ninth Circuit are broadly known. Several years ago, the New York Times, in a piece on the problem, noted that a majority of the United States Supreme Court considers the Ninth Circuit to be a rogue circuit, a circuit out of control. One year they reversed the Ninth Circuit 27 out of 28 times. Another year it was 13 out of 17 times. They have the highest reversal rate of any circuit in America. But to have so many cases, there is no way the Supreme Court of the United States can control that circuit, unless it is under control to begin with. We need judges there who follow the law. This is precisely why, as Senator Coleman indicated, we need judges like Miguel Estrada who show restraint. That is what this debate is about. That is what the President is committed to do. He said we are not going to turn criminals loose without a basis. We are not going to be taking down the Pledge of Allegiance. We are not going to be taking down Christmas decorations because of these nutty decisions coming out time and time again. Many of these decisions are under the guise of interpreting the Constitution in ways it has never been interpreted before. That is what this debate is about. That is why it is important. We need judges who will simply follow the law. Who can be afraid of that? How is our liberty endangered when we have judges who follow the law dutifully? What you have when you have a judge like Judge Reinhardt on the Ninth Circuit, who says that evolving, long-term trends of social conscience enable judges to redefine the meaning of the Constitution to make what they think is correct occur, is very dangerous policy. In fact, that idea undermines democracy. I could go on and talk about this circuit. I have made probably as many as nine speeches on the floor delineating the problems they have. I strongly believe that reform is needed. I thank the Senator from Alaska for raising that again. Her State is part of the Ninth Circuit. I know she cares deeply about it. We have had a number of proposals to fix it. The way the opponents of reform operate, and the way I have seen them do it, is whatever the proposal is, is not good enough. So they don't deny we need reform, but any time somebody proposes reform, they come along and say it isn't correct, and they turn it into a confused mess. But it is time for us now to confront this issue, it is time for us to confront the problem of judicial activism in its entirety. Unfortunately, the Pacific coast has drifted further than any from being a disciplined interpreter of the law. So I will just say, Madam President, thank you for your leadership, thank you for your important first speech. I believe it will help us go forward. It is going to encourage me to push the issue in my committee. So I thank the Senator from Alaska. I look forward to working with you and others who sincerely want to improve the rule of law in America, who want to improve consistency in the rule of law to avoid decisions that embarrass this country, and embarrass the rule of law. I yield the floor.

Mr. SESSIONS. Mr. President, will the Senator yield for a question?

Mr. SESSIONS

Mr. SESSIONS. Let me mention a couple of items. It was suggested one of the Department of Justice members, Paul Bender, raised some question about Miguel Estrada's nomination, but Bender and the other supervisors in the Clinton Department of Justice-- remember, he went into the Solicitor General's Office in 1992; surely within a year or so he should have been under the supervision of the Democrats at that time. It probably takes some time to make the change over. Almost his entire career in the Justice Department was under the leadership of Janet Reno and a Democratic Solicitor General. The Democrats gave him the highest possible performance rating. Mr. Bender, when he was evaluating him, gave him the highest evaluations. I think it odd now that he would come forward and suggest there was a problem. In fact, one of the evaluations given to him specifically noted his loyalty to the policies of the Department of Justice. It was also said there was some deal about law clerks and screening law clerks for Supreme Court Justice Kennedy. Let me point out I think it is a great honor that Justice Kennedy was so impressed with Miguel Estrada that he asked him to do screening of possible law clerks for him. Justice Kennedy is considered a middle of the road swing Justice who votes with various sides, on various sides, and is not perceived as any kind of right-wing ideologue. He liked Estrada so much that he asked him to help him screen his law clerks. I think that is a matter that is a positive thing.

Mr. SESSIONS. Mr. President, I wanted the Senator to finish, so I thank the Chair. Graceful in her remarks, I think nerves are frayed, and perhaps the senior Senator from California can play a role in bringing some things back. The Senator talked about collegiality, and some of us were very disappointed that Strom Thurmond's chief judiciary counsel was virtually blocked last year. We finally got it through at the very last minute. So a lot of things have happened. There clearly was a change in the ground rules after Members on the other side asserted that Senator Hatch did not move nominees fast enough for President Clinton and that, of course, we should not filibuster and those sort of things. Then after the election, the ground rules changed and the obstruction of nominees President Bush has sent forward has reached a much higher level. I think no one can doubt that. So we are frustrated also. I do believe we should have more collegiality in the committee, and I believe we can do better. One thing I would ask the Senator, without yielding the floor, I would suggest that on the Cook and Roberts matters, the Senator did indicate they had been pending virtually 2 years, well over a year and a half. No hearings had been held on them, but there had been 2 weeks before this markup, or the hearing--2 weeks before they had been noticed, so we put it off another 2 weeks. Perhaps the exact time of the hearing or the exact nature of what the hearing was going to be may not have been given to the Senator, but I believe after the first request the Senator made for a delay, 2 weeks did transpire. I think that would have given people time to be prepared.

Mr. SESSIONS. I yield for a question or a comment.

Mr. SESSIONS. I appreciate the comments of the Senator from California. Hopefully, we can do something better. This side does not intend to be victimized by a racheting up, substantially, of the process of confirmation that did not occur when President Clinton was President. This is what has caused the problem. I note these nominees. An absolutely superb nominee, Justice Cook, served on the Supreme Court of Ohio. As Senator Hatch has noted so often, Roberts is considered one of the top two appellate lawyers in America, an absolute superb candidate, with 39 arguments before the Supreme Court. They were denied for over a year, almost 2 years, even a hearing when the Democrats controlled the committee. That is galling. Miguel Estrada was given a hearing a year and a half afterwards, the only one actually given a hearing. But he was not moved forward out of committee. This is an odd thing to have a concern about frayed nerves when the ground rules were changed. After President Bush was elected, three professors went to the Democratic senatorial conference: Lawrence Tribe, Cas Sunstein, and Marsha Greenburger. They were quoted in the New York Times as saying: We want to change the ground rules. Obviously, one of them is that they did not conduct hearings. Some superb nominees never even had hearings. Also not mentioned at the time because the Democrats had the majority, was the filibuster. This is the first time, insofar as I know, in the history of this country we have had a filibuster for a district judge or circuit judge. It is not as if Mr. Estrada had any serious problems. There is no ethical problem with this wonderful nominee. He was rated unanimously well qualified by the American Bar Association. He was at the top of his class. Regarding his experience, he clerked for a Second Circuit judge. The position he would hold, if confirmed, is a sister circuit, the DC Circuit Court of Appeals. DC does handle some national issues and issues with which the Justice Department deals. He served in the Justice Department's Solicitor General's Office. In that position he prepared briefs and made arguments before the courts--often, I am sure, before the DC Circuit Court of Appeals. So he has an intimate connection with that. Under Rudy Guiliani, he worked in the U.S. Attorney's Office of New York, considered one of the most prestigious offices--at least those in the Southern District of New York think it is the finest. It is competitive. He handled appellate work for them. To the extent to which this nominee has experience with appellate work, it is extraordinary. I believe there is no justifiable basis for blocking his nomination. I know a Senator earlier expressed concern that we were somehow blocking an ability to take up other matters before the Senate. I would love to move forward. The way we move forward is to give Estrada a vote. We are not asking that people vote for him. We are just asking he be given a vote. We have an unprecedented filibuster. Senator Hatch concluded that we were facing a filibuster in committee. Now we have a filibuster of Estrada on the floor. The ground rules have changed. We are going to put the burden of proof on the nominee. It was one of the views that Senator Schumer has put forward. We consider whatever the politics are, which was never done before, racheting up the pressure on the nominee and then we cannot get a vote in committee. Then we cannot get the vote because every Democrat has to sign off. Senator Hatch examined the rules, met with the Parliamentarian. I have not studied the rules. He met with the Parliamentarian and he concluded he had the authority to make the ruling that he made. I don't think he wanted to do that. I think he would like to have proceeded as he had before with collegiality and allowing everyone to have their say as long as they wanted. But when you are faced with a systematic alteration of the ground rules, a systematic plan to obstruct a movement of nominees of extraordinary ability for years, who ought to be confirmed, and the courts need them, we are at a point where nerves are frayed. If the rules are going to be used on one side, rules are going to be used on the other side. The President of the United States is not going to believe he can give up his right to nominate judges and expect them to have a confirmation. It was indicated President Bush maybe was not solicitous enough. But in California I have heard complaints because he has agreed to go along with a commission in California of some sort that gives unprecedented input from Senators from California and others on the nominees. I don't know how that works, but it is pretty unusual. He also reappointed two Democratic nominees, Barrington Parker and Gregory, who had been pending and were not confirmed. I am not sure President Clinton ever nominated any Republican judges when he took over. I believe we are in an unfortunate period, that there is a lot of frustration. It is pretty deep on our side. I don't think the Senator would doubt one moment that the tactics utilized by the Democratic minority are different than the tactics utilized when the Republicans were in that position. Where do we go from here? I don't know. But it is a big deal.

Mr. SESSIONS. I yield for a question.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask for the yeas and nays.

Mr. SESSIONS

Mr. SESSIONS. I think we should be correct. As I understand his ruling, it was not that the act was unconstitutional, Senator Leahy is correct, and I do not think I said that, but the way it was carried out raised constitutional implications. I will note, having been a Federal prosecutor myself for 15 years, I know Janet Reno personally set up a committee to approve any death penalty case in Federal court, and that committee was charged with the responsibility of making sure it was fairly and objectively administered. She made the final decision on it. I know she opposed the death penalty herself personally. So I do not believe the Federal justice system of handling the death penalty is unfair. Going further than that, in July of last year, Judge Jed Rakoff of the Federal District Court in Manhattan ruled more broadly that the Federal Death Penalty Act was unconstitutional, saying the death penalty is: Tantamount to a foreseeable state-sponsored murder of innocent human beings.

Mr. SESSIONS. I will be pleased to yield.

Mr. SESSIONS. They absolutely did. That was my next point I was going to make.

Mr. SESSIONS. Well, the checks and balances did not work in the Ninth Circuit, as Senator Reid guaranteed virtually it would when he made remarks suggesting that panel was going to override the three-judge panel. The problem is, and the reason it is important, is these are rulings that reflect a person's personal views. A judge should not overcome the law. If he wants to go out and write letters and argue that the death penalty is unfair and should be repealed, I guess if he can do that consistent with his ethical standards, that is all right. He certainly can make reasoned remarks on it. I do not think he should use the power of his bench to strike it down. There are many more examples of recent rulings with which most Americans would not agree. Take for example a recent ruling concerning the Ohio State motto, ``With God all things are possible.'' The Sixth Circuit recently told Ohio its motto was unconstitutional. What about ours, ``In God We Trust''? It would take a Philadelphia lawyer to distinguish why ``In God We Trust'' is OK and the Ohio motto ``With God all things are possible,'' is not. The Sixth Circuit told Ohio its motto was unconstitutional because it established a religion, and that is really weird. There are many cases around the country where you cannot have Christmas decorations put up. We have death penalty laws being struck down. We have three-strikes-and-you're-out laws being struck down. If they violate the Constitution, that is all right; they should be stricken. If someone passes a death penalty law in a fashion that is violative of the U.S. Constitution, a Federal court--or a State court, for that matter--should strike it down on the spot. If a three-strikes- and-you're-out law is unconstitutional, it ought to be stricken. But so far as I have been able to ascertain, States are empowered to set penalties for crimes in their States. They can enhance penalties for multiple offenses, and judges can give enhanced penalties for multiple offenses. In my view, there is no law, no basis, for us declaring that these acts are unconstitutional. The point of all of that is to say: This is what activism is. This is what President Bush has said in his campaign he does not want. He is not asking the judges he nominates to carry out his agenda politically. He is prepared to fight it out in this Congress and with the American people. He does not want those judges conducting and carrying out their political agendas through the interpretation, misinterpretation, or the reinterpretation of the meanings of words and statutes in our Constitution. It is a very big deal. I hope the Supreme Court will take seriously its responsibility to guide us out of this thicket it has gotten us in with regard to its confused and inconsistent rulings on the separation of church and state, on the observance of an issue of any kind of reference to God in public life. I did have a church group that came and visited me. They said they were in the Supreme Court. They were very sincere, wonderful young people. They took their faith seriously and they took a moment over to the side and all huddled around and had a prayer for these United States of America and the legal system of America. The guard in the Supreme Court came along and shooed them out and said they could not be praying in the Supreme Court. So this is the kind of example of overreaching that we hear about in our schools, in our public affairs, on our courthouse squares, and even in the opinions of Federal judges. We can do better. We need to appoint judges who are committed to following the law. Miguel Estrada is that kind of person. That is the only thing he stands for. That is the only thing in his record he is known for; that he believes we ought not to abuse the system; that judges ought to show restraint. That is what he will do if confirmed. That is why the American Bar Association unanimously gave him the highest rating they give, which is received by only a very few nominees. That is why President Bush has asked the American people to allow him to do what he ran for office to do. He said this is what we are going to do. This is how I look at the courts and that is what we are going to try to do. I do not see why anybody should be afraid of a judge who follows the law. What we should be afraid of is judges who believe they have a right to reinterpret the law and impose their own views on all the rest of us. I yield the floor.

Mr. SESSIONS. I appreciate the comments of Senator Hollings, and I understand clearly, and I am glad he speaks with no accent, which I appreciate. He has always been very rigorous on this issue. I appreciate that. We need to watch spending around here and need to watch it in all areas. Of course, the amount of money we are spending on this war--it is estimated from $40 to $95 billion--compared to the economic loss and the internal expenditures we have had to put out as a result of the attack of September 11, is very small. So we have to do something and I don't think the Senator suggests otherwise there. We are here talking about one of the finest nominees to come before the Senate, Miguel Estrada, for the Circuit Court of Appeals for the DC Circuit. Miguel Estrada is a stunningly qualified person. He came here at age 17 from Honduras, top of his class at Columbia, magna cum laude, Phi Beta Kappa, on to Harvard Law, editor of the Harvard Law Review, clerk for a Second Circuit Court of Appeals, the sister court to the DC court he would be sitting on. He served in the Solicitor General's Office of the Justice Department where he wrote appellate briefs and argued cases before the United States Supreme Court. He has been at one of America's greatest law firms since. He received the highest possible ratings of his supervisors in the Department of Justice almost his entire time. In the Department of Justice he was being supervised by President Clinton's supervisors. They gave him the highest rating they could give. They even noted how he was disciplined and followed all the policies and procedures of the Department of Justice. The American Bar Association checked him out. They interviewed lawyers on the other side of his cases; they interviewed judges before whom he practiced; they talked to friends. They came up with a rating, unanimously ``well qualified,'' the highest possible rating the American Bar Association gives. They did not give it by a split vote but unanimously. That is very rare. They do not do that very often. He is exceptionally well qualified. I heard his testimony before the Senate Judiciary Committee. I thought he was responsive and intelligent and courteous and kept his composure on the tough questioning. Having argued 15 cases before the Supreme Court of the United States places him in a very select group of lawyers. I am sure there are not more than 20 practicing lawyers in America today who have argued 15 cases before the Supreme Court of the United States. You are not selected for that unless people believe you are very good at your business. The average guy cannot walk in and argue a case before the Supreme Court under normal circumstances. We have an exceptionally qualified nominee. What is this brouhaha all about? What is causing us to be subjected to the first filibuster in the history of the United States involving a nominee for a circuit court of appeals judge, or a district court judge for that matter, in the history of this country? We are not able to identify a single active filibuster, as we have seen today, on a nominee for circuit court of appeals or for the district court. It is stunning this is so in light of the fact we have an individual who lived the American dream, who has been a success in every category of life, whose integrity has never been questioned, and whose professionalism and skill is doubted by no one. I ask, what is it all about, Alfie? What is this about? The real deal here is the question of the role of judges: To what extent are they empowered to be activists? Should they be able to utilize and employ their own best judgment about matters and read that into the statutes and the Constitution they interpret, or should they be bound by the plain meaning of those statutes? This is a fundamental question. There is in the law schools of America, in many of the outspoken professors and proponents of law in America, a belief that judges have a duty to act and to make decisions and even so act politically. In fact, they say it is a myth and a falsehood to suggest and even to believe that judges are above politics. They say it is all politics. Why do they say that? This is part of a dangerous trend in America. Is politics in everything? The Critical Legal Studies Group that has been afoot in law schools over a number of years believes you cannot tell anything about law; that you can take words and statutes and they can mean anything you want them to mean, and they believe those laws were just written by those in power to oppress those not in power. They do not believe there are rules of the game all of us must live by that are critical to our economic development. They believe it is all politics, it is all power, and there is no truth and there is no order fundamentally. Some call it deconstructionism, and others call it the trends in America as opposed to modernism, the idea that there is no truth; one person's opinion is just as good as another; We can say what we want; I'm OK, you're OK. That kind of idea is really at the heart of some of the problems we are having. I often tell the story of Hodding Carter, who used to work for President Carter. He was on Meet The Press, where he used to be a regular member. He made a comment the other day where he said we liberals have to admit it, we are asking the courts to do for us that which we can no longer win at the ballot box. That is basically what President Bush has been unhappy with. That has been the concern he has expressed with the legal system. He simply wants judges who will follow, first, the Constitution, and then the statutes and lawful acts that are enacted pursuant to the Constitution. If the lawful acts that are adopted violate the Constitution, the Constitution trumps and the court should say so. The Constitution controls much of what goes on in this country, and it ought to be the No. 1 thing. So we follow that. It is academic when we talk about those words, but there are various cases that come along that point out the matter to us very clearly, none more significant than the ruling in California over the Pledge of Allegiance, striking down the pledge as being unconstitutional because it had the words in it ``under God.'' They said that was an establishment of a religion that is prohibited by the Constitution; that these two words established a religion. That is beyond my comprehension. It appears to be clearly contrary to the view of the U.S. Supreme Court, although the U.S. Supreme Court, I will admit, tends to be inconsistent on this issue. I remember when that happened it caused quite a stir, particularly on both sides of the aisle here. But I noticed my friends across the aisle were particularly concerned about it and were vocal. So after the panel in California struck down the Pledge of Allegiance, we met that day. People came down on the floor and spoke out. The majority leader at that time, Senator Tom Daschle, said: But this decision is nuts. This decision is just nuts. He talked about it a little bit there. He gave up the floor, and my good friend Senator Reid from Nevada, the assistant Democratic leader, spoke and this is what he said: I have the good fortune that two of my sons have been law clerks for the chief judge of the Ninth Circuit. That is where these panel members were, they were a part of the ninth circuit. In fact, one of my sons was his administrative assistant. He was a judge from Nevada, served on the very prestigious Ninth Circuit. I have had calls from my sons today. They are embarrassed about what has taken place in that Ninth Circuit. They said: Dad, don't worry about it because the court will meet en banc [the whole court will] and reverse it. These are two of the most liberal members on the Court. They come up at random. It was by chance Goodwin and Reinhardt were thrown together [on this panel] . . . But it wasn't Goodwin and Reinhardt on the panel. Mr. Reid was in error about that. But Mr. Reid said: I have great faith the court will reverse itself when they sit en banc. Well, I had hoped so, too. But I spoke on that day. I made clear I was not at all sure the full Ninth Circuit Court would reverse that opinion because I have been studying the Ninth Circuit. I have observed its irrational and activist behavior for some time. I have noted its problems. I was not at all certain it would be reversed. In fact, I said as much. I said: I hope on full rehearing en banc the court will reverse the opinion. I am not absolutely sure it will because there are others on the court I have no doubt will join in this opinion. I made other references to that. So the Ninth Circuit was--it was a test here. Everybody says don't worry about this random opinion. I have been reminded that Goodwin and Reinhardt were on that panel, along with another judge. It was a three-judge panel. So I wondered, will they reverse it? The way it works is if a panel of a larger court, the 24 judges on the Ninth Circuit, if a three-judge court rules and that opinion is significant and may implicate the rest of the law, and the full court, 24 judges, might disagree, they have an en banc hearing, they review the panel's decision, and they render an opinion, either affirming it or not affirming it. What happened here just Friday was that the Ninth Circuit decided not to rehear the ruling made by three-judge panel--in effect, affirming the opinion striking down the constitutionality of the Pledge of Allegiance of the United States, not a totally surprising thing to me. It is surprising that we are this far along. It is surprising we have gone this far in distorting the original intent of our Constitution concerning the separation of church and State and what that actually means. People say it says we must have a wall of separation between the church and State. The Constitution never said that. Thomas Jefferson said that late in his life, long after he had left public office. He wrote the Baptist Association and used that phrase--there should be a wall of separation between church and State. No one knew precisely what he meant. It was never ratified by the people. He was not even at the Constitutional Convention, Jefferson wasn't, when the Constitution was written. What we must do to determine what the Founding Fathers thought is look at that document, look at the Constitution itself. They debated the issue. They were concerned about it. Virginia had an established church. It was the Episcopal Church, the Anglican Church, the Church of England. The Americans didn't like that. They said, We are going to put in our Constitution; no one religion is going to be given a predominance over the other. So they wrote the first amendment and they said Congress--that's us, the U.S. Congress--shall make no law respecting an establishment of a religion nor prohibiting the free exercise thereof. They forget all about the free exercise clause. They simply say everything that even mentions God in public life is an establishment of a religion. That is a misreading of the Constitution. Why they have it in their heads that these things should be so closely scrutinized and should be so scrutinized by the courts and struck down by the courts is beyond me. We have been on a trend for a little over 50 years. It was not a function or a problem for the first 150 years of this country's existence, but in recent years it has developed in that way. As a result of the history of the Supreme Court rulings over the last 50 years, there is a real ambiguity concerning the meaning of the separation of church and State. I am going to show how I think activism plays a role in these decisions. People make out it does not make any difference here what kind of judges we have on courts, unless they happen to be judges who show restraint, who believe in following the law. They get attacked by our friends over here. But judges who advocate utilizing law and judicial opinions as a method to carry on a political agenda, they are quite all right. Then, when they strike down the Pledge of Allegiance, they run down here and say how awful it is. ``We are just shocked.'' And it is the judges and the philosophy of law that supports them that has led us to this point. Let me just read what Judge Paez said one time in a written article. Judge Paez has been referred to as a judge who was not fairly treated here. He was confirmed. Thirty-nine Senators voted against him. He does sit on the Ninth Circuit Court of Appeals today. And from what I can tell from this opinion, he joined in the opinion affirming the striking down of the Pledge of Allegiance. So this is what he wrote about his philosophy as a judge. He said it includes: ``an appreciation of the courts to act when they must, when the issue has been generated as a result of the failure of the political process to resolve a certain political question. Because in such instance,'' he says, ``there is no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process.'' Do you see what Judge Paez said there? And I opposed his nomination for several reasons. But this was a core reason. What he said was, if the legislature does not act on something we enlightened ones think they should act on, then the courts are empowered to act. You show me where that is in the Constitution. Let's put it really simply: When a legislature does not act on a matter, that represents a decision of a legislature. It decided not to act. That is a decision of that legislative branch just as certainly as if they had voted to make a change. Legislatures are not required to act. If they do not do something that judges think ought to be done, where does it become the idea that judges can impose that by reinterpreting the meaning of the statutes and words of the Constitution to impose their agenda? That is a big deal for me. Now, Judge Reinhardt wrote a part of this recent opinion on the Pledge of Allegiance. Let me tell you what he said. I just picked this up. It jumped right out at me because I am sensitive to this issue. I have to run for election. I have to go back to Alabama and defend what I did and what I voted on, just as the Presiding Officer did in his State. We have to defend what we do. We are accountable. But judges are given lifetime appointments. Their position is for as long as they live, with good behavior. They would have to virtually be convicted of a felony before they could be removed from office. They can hold their position for as long as they want to hold it. And sometimes they hold it for longer than their health and ability. But I want to make clear one thing: That most of our Federal judges do an excellent job, and most of them do show restraint. But there has been a continual battle over this philosophy, that you can make statutes say whatever you want them to say, and ``good'' judges should deliberately use their power to effect the public good as some group of people, whoever they are, think they should. So there was some political uproar over the striking down of the Pledge of Allegiance, and Judge Reinhardt, on the Ninth Circuit, said we ought not to pay attention to that. But then he said: This is not to say that Federal judges should be completely sequestered from the attitudes of the Nation we serve. Even though our service is accomplished not through channeling popular sentiment but through strict adherence to constitutional principles, the Constitution contemplates occasions when we must be responsive to long-term societal trends when determining, for example, that which is cruel and unusual. So the court says they have been empowered now to determine ``long- term societal trends,'' and that they can use those societal trends now to go back and take words such as ``cruel'' and ``unusual,'' and give them a new meaning. Let's talk about that very one. That is the first one he mentioned. I think it is a good one for us to talk about because cruel and unusual punishment is prohibited by our Constitution. You cannot impose cruel and unusual punishment. A number of years ago, we had two members of the Supreme Court--they are no longer there; both are deceased now--Justice Brennan and Justice Marshall, who concluded that due to evolving social trends, cruel and unusual punishment meant we should not have the death penalty. And they dissented on every single case that came before them imposing death because they believed it violated the constitutional provision concerning cruel and unusual punishment--a breathtaking position to take. I call it the high water mark of judicial activism. Where did they get this idea there had been evolved standards? It was not from polling data, because the American people overwhelmingly favored the death penalty. It was not from the legislative actions of legislatures around the country, because very few had eliminated any death penalty statutes over the years. In fact, it was a law in a majority of the States in the country. It was a law in the United States of America. So I do not know where they came up with this idea. They did not like it. Justice Brennan and Justice Marshall decided in their heart that America ought no longer to have a death penalty, so they set about combing the Constitution, and they came up with the idea that it was cruel and unusual. The Constitution has to be fairly interpreted. It said: cruel and unusual. Even if you considered it cruel, was it unusual? Every State and every Colony in America and the British Empire had the death penalty at the time the Constitution was written. Within the very corners of the Constitution itself are multiple references--six or more, as I recall--to the death penalty. It talks about capital crimes. It talks about that you cannot deprive one of life, liberty, or property. How do you deprive them of life except by the death penalty without due process of law? So this was thunderous. So we have this judge voting to strike down the Pledge of Allegiance, saying that he is empowered to utilize ``long-term societal trends.'' I guess that is the way the EU votes. Maybe we ought to take a vote in the UN. Is that what we want to do? Let's take the EU, and we will let the Europeans decide what our societal trends are. I will tell you one thing: The murder rate in Great Britain is going through the roof. And since the death penalty has come back into fashion in America, the murder rate has been plummeting. Thousands of people, on a percentage basis, today are alive, not murdered, because of the crackdown on violent crime in this country. I do not think anyone can dispute that. He talks about also, ``this broader long-term social conscience'' should guide us in deciding how to interpret statutes. Well, of course, that is bogus. Who empowered this lifetime- appointed person to do that? See, that is an antidemocratic act. Judges, by being given lifetime appointments, are unaccountable. They serve a great function in that they can enforce the law, even though it might be, in the short term, unpopular. But we depend on them very deeply. We depend on them to show restraint, to not impose their views, but to honestly and fairly interpret the law. We have some real problems here with the Supreme Court, too. The Supreme Court is very confused about the opinions on separation of church and state. But they never went this far. In fact, according to Judge O'Scannlain, who wrote a dissenting opinion from the refusal of the court to even consider the matter en banc, Justice O'Scannlain details at least four references in previous Supreme Court opinions in the line of cases on which they relied to strike down the school Pledge of Allegiance recitation as affirmatively blessing or okaying the Pledge of Allegiance. He quotes a number of those cases. Justice O'Connor and others have made that quite clear. So the question is, Does this phrase, ``under God,'' in the Pledge of Allegiance establish a religion or is it a religious act? Justice O'Scannlain says: Common sense would seem to dictate otherwise, as the public and political reaction should show and make clear. If reciting the pledge is truly a religious act in violation of the establishment clause, then so is the recitation of the Constitution itself or the Declaration of Independence. We hold these truths to be self-evident, that all people are created equal. They are endowed by their Creator with certain inalienable rights. That is not something we earned here on Earth, but part of the philosophy of the founding of our country is in the heart of the most famous words in the Declaration of Independence. ``Without our aid He did us make.'' That is how we got here. That is what a majority of the American people believe. Some 93 percent believe in God. They are not trying to impose their will on everybody. But they do not believe, and I do not believe, the Constitution prohibits any reference in the public sphere to a higher being. He goes on and says: Are we going to eliminate the Constitution, which makes references to God, the Declaration of Independence, the Gettysburg Address, which uses the phrase ``under God''? Are we going to prohibit that? The national motto, ``In God We Trust''? How about those words right up there, ``In God We Trust,'' in letters 6 inches high? Are they going to come down here with a chisel? I guess we will bring our friends from the Ninth Circuit over here with a chisel and let's see them chop away at that. That doesn't make sense, does it? But that is what we have in this opinion. How about the national anthem? Justice O'Scannlain continues: Such an assertion would make hypocrites out of our founders and would have the effect of driving any and all references to our religious heritage out of our schools and eventually out of our public life. I don't think that is an exaggeration at all. How are we going to stop this? In this Senate, we have the odd event that we have a paid Chaplain, as we have in the military. Our Chaplain comes in before we start the day, and we have a prayer. I am surprised they haven't sent the 82nd Airborne over here from across the street to stop that. They begin every session of the Supreme Court of the United States with the words: ``God save these United States and this honorable court.'' Every court I have been in uses those words. ``God save these United States and save this honorable court'' is what the clerk says when he calls the court to order all over America today. But children in the Ninth Circuit, the largest circuit in America, including some 9 million schoolkids, are prohibited now from saying the Pledge of Allegiance. This opinion was written, although I am not sure legally how much it meant, but after this Congress voted on the matter a few months ago. If Justice Reinhardt believes his evolving social consciousness has gotten to the point that America no longer wants to say ``under God,'' he ought to listen to his elected representatives because right after it happened, we voted by 99 votes last June on the floor of this Senate to reaffirm the Pledge of Allegiance and the words ``under God.'' Every Senator in here voting that day voted for it. Maybe one didn't or one was absent. It is impossible for me to believe that they think this is a result of any societal evolution that causes this. Justice O'Scannlain goes on and talks about the Engel v. Vitale case which eliminated prayer in schools, the first such case. They said they could not say a prayer written by the State. They said that was inconsistent with the establishment clause. The State wrote a prayer, and the kids were supposed to say it. They could refuse to, but they said it, and they said that was too much. That was the establishment of a religion effect. That could be something we could debate, but certainly there is some basis for that reasoning. Then he goes on to note, in a footnote, the court said this in Vitale: There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York had sponsored [by mandating a State prayer.] Then the next case in this line of cases came, Abbington School District v. Schempp. They required in Pennsylvania that at least 10 verses from the Holy Bible shall be read without comment at the opening of every public school each day. I guess they would probably put them in jail today for even expressing that. So they read the bible verses every day in the school. This was followed by a recitation of the Lord's Prayer, and finally the class would recite the Pledge of Allegiance. The court struck down the Bible reading and the practice of reciting the school prayer as a State-proscribed religious ceremony but said nothing at all about the Pledge of Allegiance. Why didn't they strike that down? Here we have the Ninth Circuit going off on a tangent, clearly by implication contrary to the views even of the U.S. Supreme Court, which have gone too far in their hostility to religious expression. Even Justice Brennan, who I noted earlier was the leader of the activist group at the high water mark of activism, said this in that case: For Justice Brennan, ``religious exercises in the public schools present a unique problem'' but ``not every involvement of religion in public life violates the Establishment Clause.'' He warned that ``[a]ny attempt to impose rigid limits upon the mention of God . . . in the classroom would be fraught with dangers.'' Specifically, he wrote that ``[t]he reference to divinity in the revised pledge of allegiance . . . may merely recognize the historical fact that our Nation was believed to have been founded `under God.' Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln's Gettysburg Address, which contains illusions to this historical fact.'' Historically, it is a fact that we believe in this country, or most Americans believe, this country was founded under God. Then we had one of the more bizarre cases that came out of Alabama. Apparently out of pique, the Supreme Court became angered that the State of Alabama passed a law that prescribed a moment of silence or meditation before each day as school commenced. Can you imagine that? How horrible this is. It took the attention of the U.S. Supreme Court in Wallace v. Jaffree, 1985. It dealt with the constitutionality of an Alabama statute authorizing a 1-minute period of silence in public schools for ``meditation or voluntary prayer.'' The Supreme Court said that was unjustified and struck that down. What a ridiculous opinion that was. When I was a lawyer practicing before courts, I never said those kinds of words about courts. I took my lumps if I didn't agree with opinions, and I accepted the rulings of the court. I think we ought to be respectful. Here I am in a coequal branch, and I am an elected politician now and, I am telling you, there is no basis for that opinion. So the Supreme Court is all confused about this. Some of the problems in the Ninth Circuit are due to their confusion. It is time for them to straighten up and figure this thing out and give us decent principles that will guide us. It is clear under Supreme Court law today that conducting a formal religious observance conflicts with the subtle rules pertaining to prayer and the religious exercise of students. Prayer was considered an overt religious exercise and that ``prayer exercises in public schools carry a particular risk of indirect coercion.'' But the Court, in a third case, Lee v. Weisman, discussed this very issue again. It took pains in the Lee case, which is the last of the cases I am citing here. The Court took pains to stress the confines of its holding; that is, how the holding was limited, concluding that ``we do not hold that every State action implicating religion is invalid if one or a few citizens find it offensive,'' and that ``a relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.'' Now, that is strong and important language. ``A relentless and all- pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution.'' I certainly agree with that. Now, I will point out that the Ninth Circuit, oddly, failed to accept even rehearing by the full Court. Why did they do that? The Senator has expressed some ideas about why. They were not very complimentary and did not suggest it was because of high ideals that they refused to even have the full Court review this panel. But I point out that the Seventh Circuit Court of Appeals, a coequal circuit with the Ninth Circuit, already considered the pledge case, and it has found it did not establish a religion. So, normally, when a circuit is wrestling with whether or not a case is important and whether or not there is a dispute in the law, they would much more normally ask for and allow a rehearing to occur en banc. The Seventh Circuit, when they considered it, framed the question precisely this way: ``Does `under God' make the Pledge a prayer whose recitation violates the establishment clause of the first amendment?'' They answered that question in the negative. The Supreme Court, according to Justice O'Scannlain, has insisted that interpretations of the establishment clause must comport ``with what history reveals was the contemporaneous understanding of its guarantees.'' ``The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.'' So we are going to interpret the first amendment to prohibit the establishment of a religion and also prohibit Congress from passing any law that would restrict the free exercise of religion. We have to ask ourselves what did it mean when they wrote it? As Judge Fernandez, who dissented on the original opinion, so eloquently points out in his dissent: Only the purist exercise in sophistry could save multiple references to our religious heritage in our national life from Newdow II's--that is the case in California--axe. Of course, the Constitution explicitly mentions God--this is Justice O'Scannlain's opinion quoting Judge Fernandez--as does the Declaration of Independence, the document which marked us as a separate people, declared us independent. The Gettysburg Address, inconveniently for the majority, contains the same precise phrase--``under God''--found to constitute an Establishment Clause violation in the pledge. After Newdow II, are we to suppose that, were a school to permit--not require--the recitation of the Constitution, the Declaration of Independence, or the Gettysburg Address in public schools, that, too, would violate the Constitution? Were the ``Founders of the United States . . . unable to understand their own handiwork?'' Were the Founders themselves unable to understand? When they put in the Constitution that we would not establish a religion, did they have any idea we were going to be striking down any references in their own Declaration of Independence to God, or in their own Constitution of which this was just a part? Of course, they didn't. What that says is, of course, that was not what they intended. They never intended, when they passed the first amendment to the Constitution of the United States of America, that we would eliminate all references to a higher being in America. Well, as Justice O'Scannlain notes, somewhat ingeniously indeed, that the recitation of the Declaration of Independence would seem to be a better candidate for the chopping block than the pledge, since the pledge does not require anyone to acknowledge the personal relationship with God to which the declaration speaks. So, too, with the National Anthem or our national motto, ``In God We Trust.'' What about our national celebration of Thanksgiving Day? It goes back to President George Washington's time when Congress stated that there was ``to be observed by acknowledgement with grateful hearts the many and signal favours of Almighty God.'' Congress made Thanksgiving a permanent holiday in 1941, and Christmas has been a national holiday since 1894. Are Newdow's constitutional rights violated when his daughter is told not to attend school on Thanksgiving? On Christmas Day? Must school outings to Federal courts be prohibited, lest the children be unduly influenced by the dreaded intonation ``God save these United States and this honorable Court.''? Are the schoolchildren not to go to the Supreme Court to hear arguments because it invokes God before Court starts every day? Justice O'Scannlain says: A theory of the Establishment Clause that would have the effect of driving out of our public life the multiple references to the Divine that run through our laws, our rituals, and our ceremonies is no theory at all. Of course, the Supreme Court, as I mentioned earlier, in several different cases, has directly, and by implication, affirmed the Pledge of Allegiance. A full hearing of this case, which I am sure the Supreme Court will hear, will make clear this pledge will stand. I hope also they will take it upon themselves to deal with the confusion they have created in this inconsistent body of law. Even Justice Brennan, that most stalwart supporter of separation of church and State, acknowledges that some official recognition of God is appropriate ``if the Government is not to adopt a stilted indifference to the religious life of the people.'' The decision reached in this case, I submit, does precisely that: Justice O'Scannlain says it adopts a stilted indifference to our past and present realities as a predominantly religious people. Justice O'Scannlain goes a little further. He raises another point. Really, when it is all said and done, this opinion does not stand for neutrality in religion; this decision stands for and, in fact, favors atheism over religion. The absolute prohibition of any mention of God in our schools creates a bias against religion. The majority simply cannot credibly advance the notion that it is neutral with respect to belief versus nonbelief. It affirmatively favors nonbelief over belief. One wonders, then, does atheism become the default religion protected by the establishment clause? We have people who object to putting in one clause in textbooks. I am not one who thinks church people ought to write the creation story or the evolution story in our textbooks. I think it would be appropriate, however, that our textbooks say that many believe the creating of life on this planet was conducted by a higher being. I do not see any problem with that. But some oppose even such a statement as that. We have a lot of weird actions going on out there today by our courts. We have, as I mentioned--hopefully, we do not have any left-- those who believe the Constitution itself, which prescribed how the death penalty should be conducted, prohibited death penalties. We have a problem in America in our legal system. It is the greatest legal system in the world. It is a system that has protected us in extraordinary ways, but we have to have judges who show restraint and who follow the law. I notice two judges about whom people expressed concern, both nominated by President Clinton and confirmed, both of whom I opposed, although I voted for 95 percent of President Clinton's nominees--they have on separate panels, for example, authored opinions to overturn California's three-strikes-and-you're-out law. That has been on the books for years. As soon as they get on the Federal bench, they say the U.S. Constitution says your three-strikes-and-you're-out law passed by the people of California that has helped precipitate a rapid decline in crime in California and save thousands and thousands of lives is unconstitutional. I think these are activist opinions. I think they will be reversed. In Andrade v. the Attorney General of California, Judge Paez ruled a lifetime sentence for a seven-time repeat offender was cruel and unusual. Seven times, Mr. President, and that number includes only his Federal offenses. Andrade also had more than a few convictions in State court. While he was on probation for a 1982 conviction, he burglarized three separate residences. Still, a lifetime sentence under the three- strikes-and-you're-out rule was too much for Judge Paez. He found the statute that provided for it unconstitutional. In Brown v. the Attorney General of the State of California, Judge Berzon held that a 25-year term of imprisonment for two defendants convicted of petty thefts, Ernest Bray and Richard Brown, constituted cruel and unusual punishment. The reality is each defendant deserved their 25-year term of imprisonment. Each had a laundry list of offenses on their record. Defendants Bray and Brown are the type of career criminals that California's three-strikes law attempted to keep off the streets. Bray had four separate robbery convictions. Robbery is the taking of property through force and violence. One of those robberies was a situation in which shots were fired at the victim, and one where the victim was hit and kicked, not even considered by the jury. The jury did not get to consider his other offenses--obstructing and resisting a public officer, and trespass in 1979, possession of a dangerous weapon in 1985, being under the influence of a controlled substance in 1991, and petty theft with a prior conviction while out on bail for the three-strikes offense. Brown's prior convictions included two counts of second-degree burglary, two counts of assault with a deadly weapon, and a robbery conviction--two counts of assault with a deadly weapon and a robbery conviction. Additionally, he had eight other convictions on his record. Judge Berzon said it was cruel and unusual to put these offenders away for this period of time. I am glad to see my distinguished colleague from Vermont in the Chamber. I supported a judge from Vermont. He had a good name, William Sessions. He has been on the bench only a few years and he has declared that the way the Federal death penalty is conducted to be unconstitutional. I can tell you how it is conducted.

Mr. SESSIONS

Mr. SESSIONS. The Senator, as chairman of the Judiciary Committee, disclosed the Department of Justice has declined to produce these internal memoranda. I ask the Senator this: Is it a fact those memoranda belong to the U.S. Department of Justice and under the attorney-client rule they are not Miguel Estrada's and he has no ability whatsoever to produce these documents?

Mr. SESSIONS. Will the Senator yield?

Mr. SESSIONS. Mr. President, will the Senator yield for a question?

Mr. SESSIONS. Mr. President, I will ask the Senator from Utah--I first would say how effective I think he has been tonight in indicating there are no reasons to oppose this nomination. I would note that the Mobile Register in my State has a fine editorial page, and they wrote: All precedent indicates that a filibuster against judicial nominations for any reason but one concerning the nominee's very integrity is essentially dirty pool. My question is: Has this nominee's integrity ever been questioned and does the Senator agree that this filibuster is dirty pool?

Mr. SESSIONS. Will the Senator yield for a question?

Mr. SESSIONS. Chairman Hatch, I know you chaired the committee and you conducted many hearings, both in your recent chairmanship and prior to that when you were chairman of the committee. But isn't it a fact that the hearing of Miguel Estrada was conducted when the Democrats were in control of the Judiciary Committee, Senator Leahy was the chairman, and they held the committee hearing as long as they chose and could have held even longer hearings had they had any further questions to ask?

Mr. SESSIONS. Mr. President, I watched with great interest the debate tonight. Senator Hatch answered every question relating to this nominee. It reminds me of the times when I was a Federal prosecutor years ago. You would go through a contentious trial and the defendant attacked the prosecutor, would attack the police, and attack the witnesses. But at the end of the trial, the evidence would be clear and you would have a real fine moment to stand up and challenge the defendant to produce any credible evidence that would justify his position. Senator Hatch repeatedly challenged our colleagues on the other side of the aisle. He urged them and pleaded with them to state a legitimate basis to reject this fine nominee, Miguel Estrada. They have failed to do so. They came up with the weakest, most pitiful, sorry explanation; that is, they want memorandums, every memorandum he ever wrote in the Justice Department. That is so weak, so baseless, so wrong. That is something he cannot give. It is not within his power to give. And he should not do it if he had the power to do so. The memorandums he produced for the Department of Justice belong to the Solicitor General, to the Department of Justice, to the people of the United States. The United States of America was his client. He has no ability whatsoever to produce those documents. He said they can have them as far as he is concerned. But as a good lawyer, he knows the Department of Justice should not and must not produce those documents. And they have never done that absent a specific showing of a specialized need. It is sad to me to see us get to this point, to see this kind of obstructionism. This is what we have seen. It is not fair to this nominee. It is not fair to the judicial system. I call on my colleagues across the aisle, and I urge them not to make this historic step, not to head down this road of filibuster. It is something we have not done before, we should not do now, and by all means we should not do this to a nominee who has not the slightest bit of a challenge to his integrity, not the slightest challenge to his legal ability, not any objection by the American Bar Association. In fact, they rated him the highest possible rating they can give and unanimously gave him that rating. It is really a sad day. If Senator Hatch was frustrated, so are a lot of us. What has been going on here is not right. It is not right. We need to stop it. The Constitution of the United States provides that confirmations are advice and consent of the Senate, article II, section 2, by a majority vote. That is what it has always been. Now we are trying to convert that to a supermajority of 60 votes. It is something we have not done before. They say: You held up President Clinton's nominee. Let me state plainly, we did not unfairly hold up any nominees. We confirmed, under President Clinton's tenure as President, 377 of his nominees. One of those nominees was voted down on this floor; 377 confirmed. Not once was there a filibuster held. In fact, when people talked about that a few times, Senator Hatch said no, that is not the right thing to do. We ought not to filibuster. That did not occur. We went on anyway and confirmed those judges. There were only 41 nominees left when President Clinton left office of those he nominated who were not confirmed; whereas when former President Bush left office there were 54 nominees unconfirmed by the Democratic Congress. So compared to those two Congresses, there is no doubt that the Republican Congress under Senator Hatch as chairman did a much more favorable job to President Clinton's nominees than the Democratic Senate did to President Bush's nominees. That cannot be disputed. It is amazing we are carrying on and suggest otherwise. Sure, the Senate is not a rubberstamp. Sure, it has a right to ask questions and demand information that is legitimate. But they are not required and should not ask for information that is not legitimate. How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Greenburger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened. Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically. If you happen to be pro-life, you are out. Pro-life, no. No such judge gets confirmed here, I suppose that means. So we went through those hearings. Lloyd Cutler and Boyden Gray headed up a national commission that studied this and the commission rejected this contention. They both said this would not be the right thing to do; they said no, this would politicize the judiciary. Most of the people who serve here who are lawyers may not regularly have practiced law. I had the opportunity and the honor for almost 12 years to represent the United States of America as U.S. attorney, practicing in Federal court before Federal judges. I practiced before Democratic judges. I practiced before Republican judges. It did not matter to me which one it was. You presented the law and the facts consistently and you would expect them to rule justly. That is what we try to do. We knew when we researched the law that we were going to win--we thought. If we had the right law, we would expect to win. Politics does not enter into it. That is the ideal of American justice, that there is equal justice under law. It is on the Supreme Court wall here, on the facade of the Supreme Court across the street, ``Equal Justice Under Law.'' So I am really frustrated that we would suggest we ought to get into a person's politics. Of course, with regard to Estrada, to my knowledge, he never campaigned for a candidate. To my knowledge, he has never run for office. It appears he is a Republican and he has conservative political views, but as he has explained, they do not affect his abilities and his decision-making process once he puts on that robe and gets in the courtroom. That is not the way he does business, and that is not the way a judge should do business. I think we are doing something here that is quite historic and is very wrong. I will say one more thing before I refer to some of the comments that were made earlier about Solicitor General memoranda. Remember, Miguel Estrada is a highly qualified nominee. He graduated magna cum laude from Columbia University after having come to this country at age 17 from Honduras. He went on to Harvard Law School. He finished at the top of his class there, magna cum laude, and was chosen an editor of the Harvard Law Review. Those of us who are lawyers and those of us who know much about the legal business know that being an editor of a law review at a good law school is one of the highest honors a graduating senior can have. To be an editor of the prestigious Harvard Law Review is one of the great honors any student can have. After graduating from college, he clerked for a Federal appellate judge in the Second Circuit Court of Appeals, one of the great courts of appeals in America. He did that, served his tenure there. Let me say, those are very competitive positions. You are not chosen to be a law clerk for a court of appeals judge or even a Federal district judge unless you have extraordinary ability and are perceived to be a person people can get along with, pleasant to work with, and have great ability. So he did that. Remember, he is being nominated for a Federal court of appeals judge. He will do the very same work on the Court of Appeals for the DC Circuit as he would did at the Second Circuit Court of Appeals in New York, as he did there. So he has had great experience sitting at the right hand of a Federal circuit judge, helping him write the opinions dealing with the Federal issues that come before him. I think that is important. After that, he became an assistant U.S. attorney in the Southern District of New York, a very prestigious U.S. attorney's office, the one in which Rudy Guiliani was U.S. Attorney and ran that office. By the way, Rudy Guiliani has written a very vigorous editorial supporting Miguel Estrada. He performed superbly there and was taken to the Department of Justice. He was asked to serve as a deputy in the Solicitor General's Office of the United States Department of Justice. The Solicitor General is often referred to as the people's lawyer. The Solicitor General has been called the greatest lawyer's job in the world. The Solicitor General of the United States of America represents the United States of America in court before the Supreme Court of the United States of America. Most lawyers can think of no greater honor, nor can I, than to be able to represent the United States of America before America's greatest Court. He served there. He came in the tail end of 1992, in the Bush administration, and stayed for 5 years in the Clinton administration. During that time the Clinton administration evaluated his performance. In every possible evaluation, they gave him the highest possible rating. It was not President Bush's administration, not some other Republican administration; the Clinton administration Department of Justice gave him the highest possible performance evaluation. Then he left there and went to a great law firm, one of America's greatest law firms. He has argued 15 cases before the United States Supreme Court. Let me tell you, I asked a lawyer earlier tonight, we were sitting at a round table, and I said, How many lawyers in America do you think have argued 15 cases before the Supreme Court? He said, You know, I bet they could all sit at this table. I suggest to you, you could count on your fingers the names of the practicing lawyers today, in practice today, who actually have argued that many cases. Arguing a case before the Supreme Court is a great honor. Very few people get selected. It is big time law business. Only the best are asked to do that. And he has done that 15 times. That shows that in private practice he has the ability and the respect to carry on weighty matters before the Nation's highest Court. So the American Bar Association comes along. They are asked to evaluate this nominee, to see how well the lawyers and bar members and all, evaluate his performance. They talk to lawyers who have practiced with him. They talk to the lawyers who have opposed him in his biggest cases. They talk to judges before whom he has practiced. They talk to lawyers for whom he has worked. And they ask people confidentially, also, to express their opinion if they know of anything that affects his integrity, legal ability, temperament, and those kinds of matters. They take it very seriously. They particularly take a court of appeals nomination very seriously. So they did all that for Miguel Estrada. They checked his background. They probably talked to his law professors and the judges he worked for and lawyers he litigated against as well as with. They evaluated him, and 15 or so of them came together and voted, and they unanimously gave him their highest possible rating. This doesn't happen to most nominees. Far fewer than 50 percent of the nominees for this court get a ``well qualified'' rating. And even fewer get a unanimous vote of ``well qualified'' by the lawyers who evaluate them. So then he came before the Senate. President Bush nominated him in May, 2 years ago. Quickly--by that time, the Democrats have taken back control of the Senate when Senator Jeffords switched parties. So they chaired the Judiciary Committee. They refused to give him a hearing. They had all his records and all his files. I am sure they were looking at him very closely because they heard he was a conservative Republican Hispanic, and somebody even said, You know, he might be a good Supreme Court nominee. He could be a real good nominee. Maybe we better beat this guy up a little bit. As a matter of fact, the more I studied his record, I saw his testimony, I think he would be a great Supreme Court nominee. He has the background, the academics, the integrity, the judgment, the record of accomplishment that would make a great Supreme Court Justice. There is no doubt about it in my mind. Whatever the reason is, they decided to block him, so they would not give him a hearing. Finally, after almost 2 years, a year and a half or so, they have a hearing. Remember now, they conduct the hearing. Senator Leahy is the chairman of the committee. Senator Schumer presided over the hearing. It went almost all day long. They could have had 3 days worth of hearings if they chose. They got to ask any questions they wanted to. He answered question after question after question. I thought he answered the questions brilliantly. I thought it was interesting tonight that Lamar Alexander, Senator Alexander, went back and read his answers. Far from agreeing with those on the other side who said he did not answer the questions, he thought he answered them brilliantly. He thought he answered them exactly the way a judge should answer them. And he did. I saw him do that, and he was a great witness. He does have a speech impediment, but he handled it with such grace. He testified with such smoothness and so much judgment and wisdom. I remember distinctly him being asked. You know President Bush said he wanted a strict constructionist on the bench. That is a layman's term for a judge who follows the law and doesn't make up law--not an activist the way people talk around the country. They asked Estrada: Are you a strict constructionist? He said: Well, I wouldn't say that. He said: I would call myself a fair constructionist. I think you should give a fair meaning to the language of the statute and Constitution that we deal with. That is what I will try to do. They later asked him written questions how he would evaluate Justices on the Supreme Court--all of them. Some of them are liberal and some are conservative. He said in his view they all try to be fair constructionists and he respects all of them but may differ on a few things but fundamentally they are in agreement. So we had the hearing. He testified well. There were no complaints against him. There were suggestions that he had acted in a politically hostile or partisan way. There was no suggestion that he had any lack of integrity. In fact, his integrity has never been challenged. They never challenged his legal ability or scholarship. They said he didn't have enough experience. That is just fundamentally false. I don't see how anybody on this floor can stand up and say he is not qualified by background and training and experience to be a court of appeals judge. That is ludicrous. He has one of the finest backgrounds any person I have seen for a court of appeals judge. He clerked for a court of appeals judge. He clerked for Anthony Kennedy on the Supreme Court, which I failed to mention, and he served in the Solicitor General's Office and the appellate division of the Attorney General's Office of the Southern District of New York--unbelievably good experience for this kind of a position. So now, tonight, when we moved to go forward and end the obstruction and just vote, what kind of objection do we hear? Well, the objection was he didn't turn over his memoranda when he was an attorney in the Solicitor General's Office. He wrote internal memoranda, and we want to see what he said. He might have said something that we can get him on. So, Mr. Estrada, you won't turn over your memos, we will not confirm you. Let us be truthful about this thing. They are not his memos. He has no authority whatsoever to turn over the Department of Justice memoranda--absolutely none. The Department of Justice says these are work products of the Department of Justice. Seven former Solicitors General--three of them Democratic Solicitors General--have said they must not be turned over; it is the wrong thing to do; we do not need to encroach on the executive branch's deliberating procedures. We don't need to chill free debate in the Solicitor General's Office. They must not be turned over. The Attorney General is not going to turn them over. So, therefore, they say: ``We gotcha.'' OK. Now we have an excuse not to vote for Estrada. What is the excuse? He won't turn over the memoranda? They are not his to turn over. They are the Department of Justice memos. It is an unfair charge. He is being treated unfairly. The burden of proof is being put on him. They are accusing him of some ideological bent, but they never explain what it is they are unhappy with. Not one political, not one philosophical, not one theological position have I heard them criticize him for. It is absolutely baseless--just absolutely wrong to say he must turn over those memoranda. They are not his to turn over. He can't turn them over, and the Attorney General would violate high standards of ethics if he did. Oh, well, they said, you know, they turned them over for other people. You heard that argument. Let me mention this first. Let us stop and slow down a minute and talk about some of the people who served as Solicitor General under Democratic administrations. The Solicitor General is a great lawyer position, as I stated before. But also the Solicitor General must be compatible with the President's philosophy and must advocate the views, insofar as he is able, that the President supports. The Solicitors General are attuned to their President. Let me read what some Democratic Solicitors General said about Miguel Estrada. Seth Waxman, former Solicitor General, Democrat, well respected throughout the country said: During the time Mr. Estrada and I worked together-- They worked together when he was Solicitor General-- he was a model of professionalism and competence. And he added: In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his political views. What a compliment from a Democratic Solicitor General for whom he worked. By the way, they want these memoranda. To whom are they written? They were written to Seth Waxman, Democratic Solicitor General under President Clinton. What does Mr. Waxman say, Mr. Clinton's Attorney General? In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views. During the time Mr. Estrada and I worked together he was a model of professionalism and competence. I am telling you that there is no basis to object to this nominee. Drew Days, another former Solicitor General under a Democratic administration and an African American, he wrote in support of Mr. Estrada: I think he is a superb lawyer. When he worked for Drew Days, Mr. Days' signature was on his performance reviews giving Mr. Estrada the highest possible rating each year--the outstanding rating in every category on the evaluation sheet. In the Department of Justice where I served, you have an evaluation form. Every supervisor has to fill it out and you can give them the rating. The highest rating is outstanding. In every category of rating Mr. Estrada got ``outstanding'' in the Clinton Department of Justice. How can this man be an extreme person, some stealth candidate out of the right wing of America who can't be trusted on the bench? That is bogus and false and wrong. It is just unfair. Robert Litt in the Department of Justice, former Deputy Assistant Attorney General, was considered by most people to be one of the more partisan members of the Department of Justice, a capable attorney, however, and certainly a Democrat. Mr. Litt said this: I have never felt that the arguments he made were in any way outside the scope of legitimate legal analysis. Randolph Moss, former Assistant Attorney General, another Democrat: He has a near encyclopedic knowledge of the law. Isn't that wonderful? Think of it. He has a near encyclopedic knowledge of the law, a powerful intellect and an ability to bring coherence to even the most complicated legal document. I am telling you that is what a judge does. A judge must be able to bring coherence to complex legal matters to get to the heart of the matter, to get it to the simplest bases and make a just decision. I think that is an extremely high compliment. I don't know what the Democratic Senators would look for in this nominee. It is beyond my comprehension how this man who is so qualified and with such a compelling life story would be blocked here. It really is stunning to me. I have a lot of other things that I could say at this time. I will not go into all of them. I want to make the point about the certain memoranda that have been produced or have leaked out of the Department of Justice with regard to previous nominees. Now, first, even if a prior Attorney General, at some moment of weakness, unwisely just produced all the memoranda and the work product of some nominee, that would not mean, to me, that we ought now to continue to violate an absolutely clear principle. But, as I have seen the facts--and we have looked at them--not one Attorney General in history has responded to the fishing expedition set forth here. This is clearly a fishing expedition. They don't say there is one thing they want for a specific reason. What do they say? They say: We want everything you ever wrote. And it is not going to happen. It is not going to happen--nada. What about Easterbrook? They said they found a two-page memo he wrote when he was in the Department of Justice. Well, the official record of the Easterbrook hearing contains no reference to this document at all. The Department of Justice cannot find any records they ever authorized releasing this document. I am not sure how the people on the other side got it. The Justice Department said they did not release it. So something is fishy about that fishing expedition. As for the documents on Robert Bork, I was here, and one of my colleagues across the aisle said: Oh, the documents have been given before. And he went on and on. He did not mention Judge Bork's name, and he waved around this document, that he was going to introduce it into the Record. I have been in courtrooms a little bit. He said he was going to introduce it, but he never did. So I said: Are you going to introduce it into the Record? He said: Yes, yes, he would. So he introduced it into the Record. And I went and got it. I like to read these things. Well, some can still remember--I don't know if the Presiding Officer was here when the Bork matter was before this body, but I think he was here. He remembers some of the intensity of the debate over the Bork matter. He was the then-Solicitor General. You had the Attorney General and the deputy, and they would not fire Archibald Cox, the special prosecutor. The Attorney General quit, and the Deputy Attorney General quit, and it fell to Robert Bork; he fired Archibald Cox on behalf of President Nixon. There were all kinds of allegations that there were secret agreements and that Bork had done all kinds of corrupt things. And it was at the height of Watergate, so they demanded all kinds of documents, but they were specific. Look, this is the document request. They wanted documents generated during the period from 1972 through 1974--not every year he was there-- and constituting, describing, referring or relating in whole or in part to the so-called Watergate affair. Well, people were concerned about Watergate. They were alleging everybody in the Government was a crook. So Bork was in there, and he fired Archibald Cox. They had some specific reasons, and they got some of these documents. I don't think they got them all. They wanted any communications between Robert Bork and any person or entity relating in whole or in part to the Office of Watergate Special Prosecution Force. They wanted any documents related to the dismissal of Archibald Cox, the abolition of the Office of Watergate Special Prosecution Force, and so on, the designation of Leon Jaworski as Watergate Special Prosecutor, the enforcement of the subpoena at issue in Nixon v. Sirica, and those kinds of matters. So that is a specific request. At least it had some colorable basis because people were concerned about Watergate. And Mr. Bork had been in the center of a very controversial decision that history records as one of the most controversial matters ever to come before the Department of Justice. So maybe they had a basis for that. And they got that. But they did not ask for everything he wrote. And the Department of Justice did not give it. Well, I will just say this to my colleagues. I do not believe this has been lost on my colleagues. I think they know that this request is unprecedented. How could they not know that? How could they not know? They come and say: Well, here is a memorandum that was produced. And they don't show it may have been, and was, in fact, in every instance, a reference to a specific allegation of misconduct or wrongdoing. So that is an argument without basis. It has been demonstrated by Senator Hatch. It has been demonstrated by the facts. Anybody who is fair and objective, and will listen, will know there is no basis whatsoever for demanding that Miguel Estrada produce these documents. And that is what the distinguished Democratic leader objected on. His basis for objection was solely that Miguel Estrada would not produce the memoranda he wrote while he was in the Department of Justice. This is a big time principle. It is a major issue. It is not an itty- bitty thing. The Department of Justice is not going to give them, and Miguel Estrada has no power whatsoever to give them because they are not his. They are the work product he made for his client. His client was the United States of America. The United States of America is entitled to the best efforts of its assistants and Assistant Solicitors General, and they ought to be able to express their opinions to their supervisors, as they wish. So, Mr. President, I think we have had enough time on this nomination. He has waited almost 2 years. The hearing was conducted by the Democrats, and it was a long hearing. They followed up with further questions. He has agreed to meet with any single Senator to answer any questions they have. He is a man of extraordinary talent, incredible achievement, a man who came here, and he has lived the American dream. I am exceedingly proud of Miguel Estrada. I think he is indeed qualified to be on the Supreme Court. He ought to be confirmed for this Court of Appeals position without any further debate whatsoever. And he ought to be, I hope, one day considered for the Supreme Court. He is certainly that qualified. I hope we will avoid this filibuster, move forward in this Senate back in accordance with our traditions of comity and respect and courtesy, in which nominees are presumed to be confirmable unless something is shown to be wrong, and that the President is able to move nominees forward, because we need them on the bench today. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Is the Senator going to another subject for long?

Mr. SESSIONS

Mr. SESSIONS. I say to the Senator, I know in the heat of this debate some on the other side have seemingly questioned the fairness of your leadership. I know they have not had the opportunity to be in Republican conference when you have been absolutely consistent with the views you expressed here on the floor to the Republicans who may have had different views. Would you share with us what you have advised Republicans in meetings about the impropriety of filibusters and how you have been consistent in that and other issues that arise on matters here today?