Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask the Senator to yield for one question.

Mr. SESSIONS. Mr. President, to follow up on that question, I felt strongly about those nominees. I did not dislike them personally, but I felt Paez and Berzon were activists. In fact, their writings clearly indicated that. Is it not a fact both Paez and Berzon, in separate opinions, have declared the longstanding ``three strikes you're out'' law in California unconstitutional? And I think one of them has been reversed already by the Supreme Court more than once?

Mr. SESSIONS. The vote was 86 to 14, and 85 to 13 to invoke cloture, and I supported cloture even though I opposed the nominees?

Mr. SESSIONS. Is it not a fact the Republican majority leader, Trent Lott, was the one who moved for cloture on Paez and Berzon?

Mr. SESSIONS. Mr. President, with respect to the Paez and Berzon matters, I ask the chairman if he remembers I was one who questioned those nominees and he made a decision in both of those cases to support them after serious thought was given to it?

Mr. SESSIONS. My second question, Mr. President, would be: The point is there has been no movement from the other side to change the basic traditional view of the power of home State Senators to object. In fact, they affirm that and insist they should be given that, and even expand it.

Mr. SESSIONS. I will ask the distinguished chairman of the Judiciary Committee, who has been involved in these matters for so many years, aren't we confusing here home State Senators' objections with a filibuster? And isn't it true that, to this very day, really earlier in this year, the Democratic Senators on the Judiciary Committee virtually demanded home State Senators be given even more power to block nominees than in the past?

Mr. SESSIONS. Will the Senator yield?

Mr. SESSIONS

Mr. SESSIONS. Not as long as some of the other Members over there.

Mr. SESSIONS. I would like to speak on the Estrada nomination.

Mr. SESSIONS

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

Mr. SESSIONS. If the Senator wouldn't take long, if she wants to ban importation of some of that Canadian lumber, I will join with her. I yield to the Senator, if she is not going to be too long then.

Mr. SESSIONS. I will, regretfully, have to object to proceeding to another subject. That is a subject we are here to talk about, and I have some remarks I want to make. So I would object.

Mr. SESSIONS. The Senator makes his point about having a right to a vote. The argument has been made previously that we need advice and consent, but we never vote. The Senator is aware that on a filibuster it takes 60 votes, and on an up-or-down vote it takes a majority, 51 votes; is that correct?

Mr. SESSIONS. The Constitution is right on advice and consent, and we can debate forever about that, what that means. Basically, it means what any Senators believe it means; is that right? They can vote on any basis they want?

Mr. SESSIONS. Mr. President, I know the Senator would like to talk about another subject. But what is the pending business we are on now?

Mr. SESSIONS. And that is what we have done. Is the Senator aware in his tenure in this Senate that we have ever had a filibuster maintained on a Federal judge?

Mr. SESSIONS. But the Senator is most trained in common sense.

Mr. SESSIONS. The Constitution says: The President shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate and, with the advice and consent of the Senate, shall appoint ambassadors, judges, and other court officers. It did not say what the vote was, so since the founding of our document, we managed that to be a majority. Where it needed a supermajority--more than 51 votes in this case--more than a simple majority, it set it out, two-thirds. So wouldn't the Senator agree that a fair reading of the Constitution would indicate our Founders contemplated that the vote here would be a simple majority required for confirmation?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, it is really frustrating. I know Senator Hatch last night expressed his frustration about arguments that are made that are just not factual. I know the Senator, as she finished her remarks eloquently, as she does, was not at the Judiciary Committee hearing which I attended on Miguel Estrada. The hearings started at 9 in the morning and went until 5 in the afternoon. There are hundreds of pages of transcript of that testimony that he gave answering every question I think with the proper nuance each and every time on question after question after question. Remember, the questions they were asking were during the time the Democrats controlled the majority in the Senate and Senator Leahy was the chairman. He could have kept them there as long as he wanted. There is no record that indicates Miguel Estrada said: Stop the hearing; I don't want to answer any more questions. He was never asked to come back to answer any more questions. The record was kept open, and Senators were allowed to submit written questions in addition. Two Senators did that--Senator Schumer and Senator Kennedy. Those were answered by Mr. Estrada. He has answered question after question after question. It is not true that he did not answer one question. He answered hundreds of questions. He answered them accurately and with skill and with good judgment. It was said earlier in the debate that he would not answer the question of whether or not he was a strict constructionist. I thought that was interesting. Somebody said that was an example of a question he would not answer. I remember the answer that he gave because I thought it was special, really indicative of his brilliance and insight into the law. Senator Edwards. Are you a strict constructionist? Mr. Estrada. I am a fair constructionist, I think. Senator Edwards. Do you consider yourself a strict constructionist? Mr. Estrada. I consider myself a fair constructionist. I mean, that is to say, I don't think that it should be the goal of courts to be strict or lax. The goal of courts is to get it right. And that may be in some cases to interpret the text as it is written because other consideration of every element of help that there is to give the text meaning tells us that that is what the lawmaker intended. But it may be inappropriate to give it a more general construction. I think we can have laws and constitutional text of both types. It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same type of interpretive analysis. A very insightful, thoughtful answer. Senator Edwards. Excuse me. I am sorry. I didn't mean to interrupt you. Mr. Estrada. No, no. Senator Edwards. Were you finished? Mr. Estrada. The example I was going to give is, you know, the Constitution says, for example, that you must be 35 years old in order to be our Chief Executive. There is not a lot of hard study that has to go into figuring out whether somebody is in compliance with the 35-year-old requirement. You can read it and say I am 40 and I can run. There are areas of the Constitution that are more open- ended, and you averted to one, like the substantive component of the due process clauses, where there are other methods of interpretation that are not quite so obvious that the Court has brought to bear to try to bring forth what the appropriate answer should be. I thought that was a very rich, very mature answer to that question and was a good example of the way he answered the questions. He was asked about his position on Roe v. Wade. He made it absolutely clear that he considered it the law of the land and he would follow that law. And he cited Casey as being further explication of Roe v. Wade, and he would follow that. So I think that is important for us to think about. People say he refused to allow himself to be questioned about a judicial philosophy. I do not understand it that way at all. He refused to allow himself to be pressured into considering questions that he might have to deal with on the bench or questions he had not fully researched. And that is what he should do. If you are before a Senate committee, and you are asked what your opinion is on the right of privacy or some due process clause, and you express that, and then you get on the bench, are you obligated, since you were under oath when you were at that committee, to follow it? What if, once you get on the bench, and you receive highly sophisticated and high-quality legal briefs that convince you you were wrong, what does the judge do then? Judges should not opine on matters that are going to come before them in the future. So he answered the questions consistently, and over and over and over again. They say: ``We have a right to advise and consent. The constitution allows that.'' And it does say that. This Senate--and every Senator-- can vote for or against a nominee on any basis they choose--a proper or improper basis. It is their right. Nobody can control me on how I vote on this floor. But what ought we do? How ought we handle matters of confirmation? Let's be truthful. The reality is that, in the past, there has been a preference given, a presumption given to the President's nominees. They were able to come before the Senate or submit documents or just have their names submitted, and generally they have been confirmed. It is part of the cooperation, unwritten courtesies, collegiality and tradition of the Senate, that the President's nominees would be confirmed, where possible. And if there is a serious objection, that should be raised. My concern in the matter of Miguel Estrada is, for the first time-- maybe this century maybe ever--a court of appeals nominee is facing a confirmation process that would require not a majority of votes in the Senate but a supermajority--60 votes--to be confirmed. That is something we have not done before. It is not something we should proceed with. The Constitution, in article II, section 2, says: [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two- thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . Judges of the supreme Court, and all other Officers. . . . The Constitution does not say what the vote should be, but it has been fully understood it meant a majority because when a supermajority of two-thirds was required, the Constitution spelled it out explicitly. So the reason many of us on this side, who have been involved and have studied the confirmation process, are deeply concerned by what is happening here is because we are changing the ground rules in an extraordinary way. We are saying now--without any real basis, without any statement of wrongdoing by this nominee, any proof whatsoever that he is extreme or will not follow the law--they are now asserting this young Hispanic, outstanding lawyer has to have 60 votes to be confirmed, not 51. That is not right. I urge the Members of this body, I plead with the Members of this body: Do not do this. This knife cuts both ways. Are we setting a precedent we are going to follow as long as this Senate exists? If you do not like a nominee, and 40 people get together, they can block that nominee? That was not done when President Clinton was President. There was not a filibuster of a President Clinton nominee. There was not a blocking of any of the nominees in committee. Last year, when the Democrats had the majority in the Judiciary Committee, they blocked two nominees in committee on a straight party- line vote, both of whom would have been confirmed, it was clear, from news reports, had they reached the floor. They killed them in committee. I thought they had, but that may not be the case today. That was a rachetting up of the process. They said: Well, you held up President Clinton's nominees. Let me tell you what the facts are there. In the 8 years that President Clinton was President, he had confirmed 377 Federal judges. One of his nominees was voted down. That nominee was opposed by the National Sheriffs Association, law enforcement groups, and both Home State Senators. It is the only one that was voted down. Not one was killed in committee on a party-line vote. Not one was filibustered. So I just say, that it is not true that President Clinton's nominees received unfair scrutiny. Yes, they were asked questions, but they were asked responsible questions. And they were consistently confirmed in large numbers. They said: Well, some of them did not get through. The fact is, when President Clinton left office, he had nominated 41 judges who had not been cleared. He confirmed 377, but 41 had not cleared. When former President Bush left office in 1992, there were 54 judges which the Democratic majority Senate had not confirmed. So it is a total falsehood to suggest the Clinton nominees were mistreated when they came through here. They got a higher percentage of them confirmed than did former President Bush's nominees. They were not filibustered, and they were not blocked in committee. I feel very strongly about that. It has been said that you Republicans said advise and consent is not a rubberstamp and you had a right to raise questions and vote against nominees. I agree with that. We all have that right. We can vote against them. We have a right to debate them. We have a right to ask questions. If we are not satisfied with those answers, we have an obligation to vote no. We should vote no. But wait a minute. What if we don't allow them to have a vote? Is that what we are saying? We are going to vote to not allow a vote? I am not at all pleased with that. One person suggested we are dealing with judges from the lunatic fringes. That was a quote made earlier. This nominee cannot possibly be considered a lunatic fringe nominee. This nominee unanimously was rated well qualified by the American Bar Association. The ABA goes out and investigates these nominees. They ask what cases they have handled. They then make a list of the lawyers on the other side of the cases, and they go out and interview the lawyers. They interview the judges who tried the cases. They don't give out well-qualified ratings that often. It is rare to get a unanimously well-qualified rating. How can we say Miguel Estrada is somehow out of the mainstream or a lunatic fringe nominee when the gold standard, as one of my Democratic colleagues said, the ABA, rated him well qualified with their highest possible rating? It can't be done. He went to Harvard. He was editor of the Law Review and spent 5 years in the Department of Justice Office of Solicitor General under the Clinton administration. Under the Clinton administration he was evaluated repeatedly by his supervisors, and he was given the highest possible evaluation you could give an attorney in the Department of Justice every year, the top rating. Is this some sort of incapable stealth candidate we don't know anything about? No, sir. Not so. One of our Senators talked about the Constitution as a changing document and that from time to time we just change it. I think that is dangerous. Our liberties are bound up in that document. If we say we have a right to change its meaning from time to time, according to the length of the chancellor's foot, according to how a judge may feel on a given day, our liberties have been eroded. I remember Professor Van Alstyne at Duke, a constitutional scholar, said: If you love this Constitution and you really respect the Constitution, you will interpret it as it is written. You don't interpret it as you wish it were. If you do that, you don't respect the document. You undermine the document and the power that it has had for generation after generation to protect our liberties and order. They say: You are just pounding on the table over there, Republicans. You have no argument whatsoever. That is not true. Mr. Estrada has one of the highest recommendations, with one of the greatest backgrounds of any nominee I have ever seen come before this Senate. I was in the committee and I heard his testimony. It was absolutely superb, one of the finest testimonies I have seen. He was responsive, intelligent, quiet, thoughtful, courteous to the questioners, at times when he should not have been. I was very impressed with him. Some think maybe the opposition to this young conservative Hispanic is because, who knows, President Bush might want to put him on the Supreme Court. I will just say this: I saw him testify. I read his record and background. He would make an outstanding Supreme Court Justice, a great Supreme Court Justice. He has integrity and legal thought processes that are superb. I am very pleased with him. They throw out these charges. I just happen to know some of them because I have been involved in the hearings. They said one judge was asked to give all his downward departures in criminal cases. What a judge sentences in a criminal case is a public document. It is part of the public record. A downward departure means the judge has violated the sentencing guidelines. But when he does that, he has to write a special opinion to justify why he downward-departed and gave the criminal defendant less than the statutory minimum and sentencing guidelines would require him to get as a sentence. I don't think that was an extreme thing to ask. What they are asking this nominee to do is reveal internal memoranda he wrote while he was a member of the Clinton administration to his fellow colleagues as they discussed how to handle complex legal matters. Every single living Solicitor General has said that this should not be done. There are seven of those, and four of them are Democrats. They have said: No, we do not want our attorneys' work product, our internal memoranda popped up every time somebody wants to do it. If members of our staff think they can't express an honest opinion in my law office as Solicitor General, then they are being chilled, if they are going to bring it out some day and say, you can't be a Federal judge because as a young lawyer you wrote a memorandum that didn't make sense. Also they want the free and open discussion they get from the members of their staff. That would be reduced if these memoranda should be put forward. I ask my colleagues: Should those documents be produced? Is that something we have to do here? Is that a good policy for America to say that from henceforth, now and forever, every member of the Department of Justice, every member of a law firm who wrote internal memoranda, they have to produce all of those before they can be confirmed? That is a dangerous precedent we ought not to follow. They say: Well, there are some examples in which that happened. The Senator from Connecticut had some documents and had a letter from the Department of Justice asking for them back. He said: That proves they had to exist because they asked for them back. I asked him about it. He introduced them into evidence. I read them. Well, it was the Bork confirmation. There were allegations about Watergate and those kind of things, and they were asking questions before they wanted to put him on the court about specific concerns that Bork may have acted improperly in a series of positions and events. So they asked for those documents, and at some point they turned them over. That is not the routine thing. There has not been a single suggestion Miguel Estrada has done anything to implicate himself in a Watergate type matter. He was a lower echelon attorney in the Solicitor General's office of President Bill Clinton. They have not suggested he would do anything corrupt. They have not suggested any particular issue he took some extreme view on that somehow we have to have this document. They want a fishing expedition. Not so. We ought not do that. I urge my colleagues, I plead with my colleagues, do not do this. We ought not to do it. It is not right we would do that. Well, the junior Senator from New York said that power corrupts, and somehow that moving this nominee, who almost sat here for 2 years-- moving forward and having a hearing and all, is somehow corrupt or some sort of corrupt thing--to ask for a vote and insist we have a vote, that is corrupt. Well, I say this: All of us have responsibilities to use our power responsibly. We ought not abuse that power. Abuse of power is a form of corruption. But, may not the minority be corrupt if they use the rules and procedures of this Senate to work a transformation of the traditions of this Senate, to block a nominee by requiring that they now have to have 60 votes instead of a majority? Could that be a form of corruption? I suggest it may be. Why? Because hard left attack groups insist and jerk their chain and demand that they vote no, so they just fall in line with that kind of thinking. I am not happy with that. I don't believe this nominee deserves this kind of delay. I believe he deserves a vote. I believe there is not one bit of evidence that has come into this record that indicates he has any failings that would disqualify him from the federal judiciary. I think we ought to give him a vote. They asked a nominee how he voted on some issue. I remember that. Somebody asked that question. The nominee didn't answer it, and I think it was said that he should not answer it. He never answered it, and he was confirmed. They are saying if you don't produce confidential, internal Department of Justice memoranda, we are not going to confirm you. Well, what is this all about? I remember quite a number of years ago, there was a ``Meet the Press'' program and Hodding Carter, who used to be assistant to President Carter, was asked about judges and nominations when President Reagan was in office. He made this comment. He said: The truth is, we liberals have been asking the Federal courts to do for us that which we can no longer win at the ballot box. If you cannot win the issue at the ballot box and you can get an activist judge on the bench, maybe you can just file a lawsuit and they will rule your way. Maybe they will just reinterpret the meaning of the Constitution or statute and give it some new meaning and just use the law to effect a political agenda. That is not right. When judges are given lifetime appointments, you need judges who are faithful to the Constitution and the statutes. That is what Miguel Estrada's judicial philosophy is. That is what it is. It is a hostility to use the law for other matters. He believes in giving the law a fair construction, as he said to Senator Edwards. He asked a little bit about it, and Senator Edwards pursued the matter a little later. He said: Well, President Bush said that he believes in strict construction. You say you believe in fair construction, and Mr. Estrada replied that he had not talked to President Bush about it. He said: You asked me my opinion. My opinion is fair construction. Mr. President, that is an independent and wise answer. So we have seen courts do things that are really bizarre in America today. We have seen the courts be utilized as a tool to further agendas. Many decisions that we have seen rendered fly in the face of logic. We had judges on the Ninth Circuit Court of Appeals rule that ``under God'' should be taken out of the Pledge of Allegiance. We have had one judge in Vermont--he had a good name, Sessions--whom we confirmed. He is Senator Leahy's friend and was his campaign manager. It wasn't long after Judge Sessions got on the bench that he declared the Federal death penalty unconstitutional. We have heard Senators talk about Berzon and Paez having some difficulties. But I would say that perhaps they should have had some difficulties. Since they have been affirmed just a few years ago, after taking their positions on the Federal bench in California, they both have participated in separate opinions declaring the California ``three strikes and you are out'' law unconstitutional. This law has been the basis of tens of thousands of convictions of defendants and has helped drive the crime rate down. Yet they said they thought it was cruel and unusual punishment to have a mandatory penalty--really an odd and extreme view. I felt very strongly that both of those nominees were going to be activist judges, were not going to be bound by the law, and I voted against them; but they both were confirmed. We didn't filibuster them. They got their up-or-down vote, and they were confirmed with a majority of the vote in this Senate. So I just make that point. As one of our witnesses said in committee, all in all, a judge who believes in strict construction of the law, or a fair construction of the law, and who is not an activist poses less threat to our liberties than one who is an activist judge. That is what Miguel Estrada believes in. That is what President Bush believes in. He wants to bring some sanity back to our legal system. He wants judges who have the classical view of the law. He wants judges who do not feel it is incumbent upon them to tell a city they cannot have Christmas decorations. He does not believe they should be striking down the Pledge of Allegiance, or striking down the Federal death penalty, or striking down the California ``three strikes and you are out'' law. Those are activist decisions and they threaten our judicial process and deny the people the right to control their destiny. Federal judges, being lifetime appointed, are not subject to control by the democratic process. So when they are given the power to carry on political agendas, then they are acting in an antidemocratic way. It is an anti-, undemocratic act when a lifetime appointed judge, with no accountability to the public, starts issuing opinions that affect public policy. Well, I will just say that it wasn't long ago when the leadership on the other side, without any hesitation, opposed the filibustering of Federal judges. Senator Leahy, past chairman of the Judiciary Committee, and currently the ranking Democrat on the committee, said this: If we want to vote against somebody, vote against them. I respect that. State your reasons. I respect that. But don't hold up a qualified judicial nominee. . . . I have stated over and over again on this floor that I would . . . object and fight against any filibuster on a judge, whether it is somebody I opposed or supported, that I felt the Senate should do its duty. That is a clear and unequivocal statement in opposition to a filibuster. He said that in 1998. In 2000, Senator Leahy said: I have said on the floor, although we are different parties, I have agreed with Governor George Bush, who has said that in the Senate a nominee ought to get a [floor] vote, up or down, within 60 days. Senator Biden, the past Judiciary chairman: But I also respectfully suggest that everyone who is nominated ought to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. . . . It is totally appropriate for Republicans to reject every single nominee if they want to. That is within their right. But it is not, I will respectfully request, Madam President, appropriate not to have hearings on them, not to bring them to the floor, and not to allow them to have a vote. . . . Senator Feinstein: A nominee is entitled to a vote. Vote them up; vote them down. On and on that is mentioned. That has been our policy. Sure, some nominees have been held, but they usually have been forced up for votes, and they have gotten their vote. When President Clinton left office, there were only 41 judges who did not get a vote. Only 41. There were 54 when President Bush left office, and it has been historic in this body at the end of a session when nominees come in and people are thinking there might be a new President, the process slows down. That has happened for good or ill probably for the last century. That is within the realm of responsibility. To openly filibuster a qualified nominee (early in a term) is contrary to the traditions of this body and would set a precedent that would be quite dangerous. Once again, I urge my colleagues not to go down this road. I urge my colleagues to think seriously before they consider a routine filibuster. Maybe if this nominee had ethical problems or serious personal problems, that would justify a filibuster, but not a nominee who is rated well-qualified by the bar, who has the support of virtually everyone with whom he has worked, who demonstrated by his testimony extraordinary skill and intelligence. I respect him. I believe he should be given a vote. I hope and believe that somehow we will avoid this and we will get an up-or-down vote on him. That is my request to my friends across the aisle, and it would be a mistake if that does not occur. Mr. President, I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I know the Senator is so knowledgeable about these matters. This is an appellate bench, which handles appellate matters. But isn't it true that Mr. Estrada was a law clerk for a Second Circuit Federal judge and a U.S. Supreme Court Justice?

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

Mr. SESSIONS. I would be pleased to take a look at those.

Mr. SESSIONS. Probably 15 minutes. Senator Dodd mentioned some documents. Have those been offered for the Record?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I believe Senator Kyl was in the line to speak next. I think probably he will be here shortly. I would like to say one thing about this issue of ideology. We had hearings on it. I know Senator Schumer advocated that we ought to consider ideology--I guess he meant politics--of the nominee. Some of my friends across the aisle asked: Why do Republicans nominate Republicans and Democrats Democrats, if ideology doesn't matter? We voted for those nominees. President Clinton had confirmed during his tenure as President of the United States 377 Federal judges. This Senate voted down one judge. That is all we voted down on the floor of the Senate. None were blocked in committee. All were voted out of committee, unless they had objections from home State Senators and came up until the last of the administration. And 41 judges had been nominated and were pending either in committee or on the floor when President Clinton left office. Comparing that to when President Bush left office and the Democrats controlled the Senate, there were 54 nominees pending and unconfirmed. I think all of us need to take a deep breath and to remember that the judiciary is made up of human beings. They are appointed by the President. Our President believes in judicial restraint. He believes that judges should not enact political agendas from the bench. That is the criteria he has used--that and excellence and integrity. Miguel Estrada, probably as much as any nominee we have ever had, represents excellence, integrity, and experience that would qualify him for the job. Indeed, he unanimously won the highest rating from the American Bar Association, ``well qualified.'' But I will just say that we did, in fact, vote overwhelmingly for President Clinton's judges--377, and one we voted down. Only 41 were left pending when he left office, which is well within the tradition of this Senate. Frankly, if people get nominated late, they don't have time for hearings. Sometimes the Senate will think, let's see how the election comes out and leave some hanging. That has always happened here. That can be criticized. But we do that. What we are seeing now is a slowdown of nominees at the beginning of the process. I also note that as we considered these nominees we had hearings on the burden of proof. A group of liberal professors met with the Democratic leadership soon after President Bush was elected President. They made a proposal that the ground rules of judicial nominations should be changed. They didn't propose it while President Clinton was nominating his nominees, many of which were ACLU members, and many of which were strongly pro-abortion, and those kinds of things. They didn't raise that then. But as soon as the election was over, they proposed changing the ground rules, according to the New York Times report of that event. One of the things was that they would consider ideology. Another one was that they would change the burden of proof-- that for the first time in history the burden would be on the nominee to somehow prove that they were worthy of the appointment instead of having the Senate review the presumptive power of the President to make the nominee and then if disagreeing object to them. That was a big deal. We had hearings on that in the court subcommittee of the Judiciary, of which I am a member. Senator Schumer was an advocate of both of these positions. But the hearings he held were fair, and we had an interesting debate about it. I will just say, being the ranking Republican during that time, that the witnesses and the evidence we took to me clearly did not support changing the ground rules. People such as Lloyd Cutler, who was counsel to the White House under Presidents Carter and Clinton, opposed that. He believed that nominees should be given also the presumption of confirmation. I thought it was pretty successful in how we handled it, and that the evaluations we considered on the issue should not be changed. The rules ought not to be changed to going to a different way of considering nominations. Senator Hatch--I have to agree, and I think my colleague, Senator Leahy, would agree with this--set forth a principal position for evaluating judges. He said we should consider judicial philosophy. He did not say we should consider their politics. He talked about judicial philosophy and the danger. The issue that concerned him and concerned most Americans was the question of judicial activism. This was a philosophy taught in law school for many years. I think maybe hopefully that it is a little less prominent today than it was 15 or 20 years ago--that good judges shove the envelope, good judges should be activists, they should promote good causes and use the power of their office to further causes which they believe are just and to strike blows for the poor, and that kind of thing. It was a strong philosophy. But the truth is that is a dangerous philosophy. When you are talking about a lifetime appointment of a person to the Federal bench, they should understand that they are not empowered to render rulings that go beyond the plain meaning of the law. They should not render rulings that twist the meaning of words--giving words new and different meanings than were intended when the Congress passed legislation, or when the Constitution was written. That is a very important issue to me. On this question of activism, when you give an unelected judge and an unelected court lifetime appointments with no accountability to the people, the power to redefine the meaning of words and to change historic understandings of our clauses and phrases in our statutes and in our Constitution, we have diminished democracy because they are democratically accountable. If we changed the law, they can vote us out of office. The next group of Senators or Congressmen can change the law if we vote badly. But if they declare that the Constitution says you can't do this or you must do that, then it is much, much more difficult to deal with. Certainly, in this Congress we do not want to impeach judges because we disagree with their opinion. What we need are judges on the bench who are honorable, intelligent, capable, and who understand their role, which is to enforce the law as written. And that is the kind of judge we ought not have fear of, as one witness said. Why should we fear a judge who shows restraint? Our liberties are not at risk by a judge who shows restraint. Our liberties are at risk when we have a judge who believes they have the ability to go beyond what statutes say and to do what they think is right. You have heard them say: Well, the legislature would not act, so the judges had to act. That is not legitimate. If the legislature did not act, that is a decision of the legislature, a decision not to act. It is no less valid than a decision by a legislature to act on a matter. Judges ought to follow the law as written. They ought to understand the great power of that branch of Government. They ought to be independent. They should strike down laws that are unconstitutional. That is not being activist. If a law is in violation of the Constitution, a conservative or liberal judge, I hope, will strike it down. We have accepted that since Marbury v. Madison, since virtually the beginning of this country. But that is not activist. What is activist is to misrepresent what the Congress intended, to twist the meaning of the words of the Congress, or to alter the meaning of the words of the Constitution to promote a short-term political agenda. I really think that is our problem. Activism can be defined in a number of ways, but it is quite different from a person's political philosophy. To me, the high water mark of judicial activism was when we had two members of the U.S. Supreme Court dissent on every single death penalty case. Their dissent was, they believed the death penalty was cruel and unusual punishment and the Constitution prohibits the imposition of cruel and unusual punishment. They said, according to the changing standards they live in today, this was no longer compatible with humane or legal systems or modern thought, and therefore they just found it cruel and unusual to execute anyone by any means, and therefore the whole death penalty statute should be struck down. The reason that was particularly ill advised, in my view, is that at the time the Constitution was adopted, it had the cruel and unusual punishment language in it but it also had six or eight references in an approving way to a death penalty. They talked about capital crimes and what the rules should be in a capital crime. And capital crimes are death penalty cases. They said life, liberty, and property cannot be taken without due process of law--you can't take life. That means a death penalty. Every State in the Union at the time the Constitution was written had a death penalty, and so did the Federal Government have death penalties. So for those two judges to actually dissent in case after case after case, to me, was merely imposing their personal views at one moment in time over the established will of the legal system that had been from the beginning. It is also contrary to the views of the majority of the States in the United States. And the polls have shown-- if they want to go to evolving standards of decency that the American people oppose the death penalty--that, in fact, overwhelmingly they favor the death penalty. So I think we do need to watch that. (Mr. CHAMBLISS assumed the chair.)