Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent to speak as in morning business.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS

Mr. SESSIONS. Maria Hsia was indicted in California and charged here. She had a hung jury there and was convicted here. That was a critical case to the Clinton-Gore administration. It was important to them. She had the potential to cooperate and talk. At any rate, it still remains odd to me that in these high-profile cases about which much has been written in recent weeks, one of which was tried here in Washington, Judge Paez got both of them. I submit to my colleagues that perhaps that circuit is assigning those cases randomly, but this case of John Huang did not come off an indictment; it came off a plea bargain. I have a copy of the plea bargain which is part of the public record in California. It was signed by John Huang, his attorneys, and the prosecutor, a Department of Justice employee of Janet Reno who holds her job in Washington at the pleasure of the President of the United States, whose campaign was involved in this illegality. That is who was making the decision on the prosecutorial end. To me, the question is whether or not the judge handled himself correctly. Some say the judge did not know of all this material and it was not his fault; it was the prosecutor's fault. I do believe the prosecutors failed in advocating effectively the interests of the people of the United States and the rule of law in this case. In California, young people every day are getting sent to jail for 15 years, 20 years, without parole, for dealing in crack cocaine and other violations. A guy raises $1.6 million from the Chinese Government and launders it into the Democratic National Committee, and what does he walk out with? Total probation, not a day in jail. That is wrong. This is how they did it. This is a plea agreement. First and foremost, a judge is not bound to accept the plea agreement. He does not have to accept it. I am going to read the language in this agreement that talks about that. This is Huang and his attorneys and the U.S. attorney prosecutor. They signed this agreement. It says: This agreement is not binding on the Court. And the court in this case is Judge Paez. The United States and you-- Huang-- understand that the Court retains complete discretion to accept or reject the agreed-upon disposition provided for in Paragraph 15(f) of this Agreement. They had an agreement, but the judge had every right not to accept it. It goes on to say: In addition, should the Court reject the Agreement and should you thereafter withdraw your guilty plea-- They said if the judge did not follow this recommendation of probation, John Huang could withdraw his plea and go to trial and declare his innocence and they would not use anything he said against him. It goes on to say: . . . without prejudice . . . to indictment-- In your defense. It goes on in detail about it. That is normally done. I was a Federal prosecutor. I am aware of that. They had the deal arranged. They took it to him. He was not given all of the facts in the case, but he was given enough facts in the case and he was aware of enough facts to reject this plea. I want to go over with my colleagues a couple of the items. I mentioned them earlier, but this is so critical. This is why we need to take some time to pause before we confirm this man for a lifetime appointment to a court one step below the U.S. Supreme Court. We waited and fought for 4 years as to whether or not he should be confirmed. Now we have these new charges pending, and I do not see why in the world we cannot be given 3 weeks--just 3 weeks--to inquire into it and make a decision. This is what he was given. He was given evidence that a substantial part of the fraudulent scheme was committed outside the United States because this was foreign money. If that is true, the judge was required to add two levels to the sentencing. He added no levels to the sentencing for that. He was told there were 24 illegal contributions spread out over a course of 2 years involving multiple overseas corporate entities of which June Huang was responsible for soliciting the money and reimbursing the contributions. That should have added two to four new levels. He was an officer and a director in a bank, and as an officer and a director, he should have had two levels added for abusing a position of public or private trust. These are not requests. These are matters at which the judge is supposed to look. They are mandates of law. He ignored all of those, and that is how the judge came out with a sentence level of 8 and not maybe 14 because if it had been a level 9, one more level up, and this sentence would have required John Huang to go to jail at least some time. The Department of Justice did not want him to go to jail. They wanted him to have a deal. He spent not one day in jail and pled to a contribution to the mayor's race of the city of Los Angeles and did not plea to any criminal charge relating to the 1996 Presidential campaign and, in fact, I want to note what this plea agreement said. It grants him immunity on all of those charges. This is what the agreement said, America. Listen to this. This is serious business. It said: Judge, if you accept this plea, the prosecutors of the United States will not prosecute you, John Huang, for any other violations of law other than those laws relating to national security or espionage occurring before the date of this agreement signed by you. He could have been found to commit murder. Giving blind immunity is a very dangerous commitment to make. He could have committed embezzlement. He could have committed bribery. He could never be prosecuted. He got his probation deal, he walked out of court, and he received no time in jail. There was no evidence presented in court about the $1.6 million he spent in this campaign for the Democratic National Committee, which was illegal and had to be returned. None of that came out. It was not a plea bargain; it was a wrong plea bargain. He should have looked those lawyers in the eye and said: Gentlemen, I have the right to reject this plea and I do. This is a matter of national importance. It is a matter that goes to the core of justice and our commitment in this country to equal justice under law. He did not do so. He actually went along with a procedure in which he accepted guideline levels that he could not justify and that were wrong. He was affirmatively wrong. He maybe should have had more evidence, but he had enough to reject this agreement. I know my time is up, Mr. President. I believe strongly in this. We ought not to be doing this. We ought not to be shoving this through. This man ought not to be on the bench until we know precisely how he got this case and why, and have him stand up under oath and explain why he did not follow the plain guidelines of the law of the United States of America. I believe strongly in it. I have voted for an overwhelming number of Federal judges put forth by this administration. This Congress has rejected only 1 out of over 300-something. This one has been controversial from the beginning, and he ought not go forward. Mr. President, my time is up, and I yield the floor.

Mr. SESSIONS. Mr. President, I reclaim the floor. I appreciate the question.

Mr. SESSIONS. I will be glad to yield.

Mr. SESSIONS. Mr. President, I remain very troubled by this nomination. I know it has been pending for a long time because of the controversy surrounding the activism of the Ninth Circuit Court of Appeals to which Judge Paez has been nominated and by Judge Paez's own personal history of activism and his philosophy of judging that indicates to me he is quite clearly right along with the leftward group in tilt and movement of that circuit. We need to remove that circuit to the mainstream, not continue it out in left field, not having it be reversed 17 times, unanimously, by the U.S. Supreme Court in 1 year, a record that has never been met and probably never will be surpassed by any circuit in history. We need to get that circuit in the mainstream of law. Judge Paez will keep it out of the mainstream. But we have had recent developments. We have been looking into Judge Paez's handling and acceptance of the guilty plea of John Huang, in Los Angeles, where he is a sitting district judge, Federal court judge. I believe there are a number of factors that indicate to me that that was not handled properly, not handled according to the highest standards of justice and, in fact, the plea bargain and sentence he approved was not justified under the law, and that he violated Federal guidelines in order to approve a plea bargain that was unacceptable, in my view, as to what should have occurred in the disposition of that case. So I believe, and I have asked, and I have written the majority leader and asked that he pull this nomination off the floor and we be allowed to go back to committee and have live witnesses, under oath, to find out how it was, out of 34 judges who could have heard the Huang case in Los Angeles, that this case got to Judge Paez, the one who was already being nominated by the President for a court of appeals that is one step below the U.S. Supreme Court. How did it go to him? Also, we had the Maria Hsia case that was recently tried here in Washington, and she was convicted. I believe there was a mistrial in California, but he had that case, too. How did this judge, out of 34, get both those cases that had great potential to embarrass the President, because this was the key part of the campaign finance corruption scandal? John Huang is the guy who raised $1.6 million in illegal funds from foreign sources that the Democratic National Committee had to return because they were illegally obtained. Then he comes in and the Department of Justice, which was urged by the chairman of the Judiciary Committee of the Senate and the House, Members of this body--we urged the Department of Justice to send a special prosecutor to handle this case, and she did, in a number of cases; Attorney General Janet Reno did make special appointments.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent to speak approximately 12 minutes on the Paez nomination. I don't know whether there is any agreement on that. Otherwise, I will do it in morning business.

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

Mr. SESSIONS

Mr. SESSIONS. I thank the Chair. I hate to ask this to be delayed. But he is a sitting Federal judge. It is not messing up his Federal practice in a couple or three weeks to get to the bottom of this and how the case was assigned, because it didn't come out of an indictment by a grand jury, it came out of the handling by the prosecutor. In my experience, those cases are not randomly assigned. Quite often, they are taken directly by the prosecutor to the judge. I would like to have somebody under oath explain to me how the Hsia case and the Huang case went to Judge Paez. Out of 34 judges, they went to Judge Paez. That doesn't strike well with me. I would like to know that before we go forward with the vote. If he has a good answer, I am willing to accept it. I yield the floor.

Mr. SESSIONS. I am sorry. I will be happy to enter into a dialogue and come back to it later. Senator Specter was, in fact, a State prosecutor. He is familiar in that boiler room of Philadelphia when judges are sitting up there and prosecutors come forward on burglary cases. The judge is a victim. He has to take the recommendation of the prosecutor and does so routinely. Federal judges try to do that, but it is always recognized that they have ultimate responsibility, as this plea agreement says. In a case of national importance, which in itself just on the face of it does not pass the smell test, in my view, he should not have accepted it. Another thing Senator Specter has never done is handle the sentencing guidelines. They were not a part of the State courts of Philadelphia or Pennsylvania, but they were a part of the Federal court where Judge Paez was sitting. I don't think Senator Specter has ever considered the fact that the evidence is what the judge had, and he did not have all that he should have had. But what he did have indicates that he did not properly apply the guidelines. That is the only thing he can be responsible for, in my view. If evidence was withheld from him, I understand that. But what I have been quoting here is what he did have. I also note in Roll Call, in the Republican Representative Jay Kim probation case, they said Judge Paez's sentence of Representative Kim was a mere slap on the wrist and makes us think that the Senate Judiciary Committee ought to question whether or not Paez is too soft on criminals to be a Federal judge.

Mr. SESSIONS. I will finish, and the Senator can respond.

Mr. SESSIONS. I have the floor.

Mr. SESSIONS. Let me just say to the Senator that I have asked for an additional hearing to find out if I might be wrong about this and hear both sides of it. But I am not going to support a filibuster on this nomination. If we do that, we will just vote on it, as far as I am concerned.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I point out in that case the Ninth Circuit asked the California Supreme Court for an advisory opinion. The California Supreme Court reversed Judge Paez' opinion, finding it to be erroneous, and condemned Judge Paez's ruling in exceptional strident terms stating: As noted above, the regulation of solicitation long has been recognized as being within the government's police power. . . . If, as plaintiffs suggest, lawmakers cannot distinguish properly between solicitation for immediate exchange of money and other kinds of speech, then it may be impossible to tailor legislation in this area in a manner that avoids rendering that legislation impermissibly overinclusive. In our view, a court [Judge Paez] should avoid a constitutional interpretation that so severely would constrain the legitimate exercise of government authority in an area in which such regulation long has been acknowledged as appropriate.

Mr. SESSIONS. I would ask unanimous for one minute.

Mr. SESSIONS. Mr. President, I was going to mention a few reasons for that. I believe his record would indicate that he is not going to provide the kind of balanced adjudication that would be required in law enforcement matters. For example, shortly after the judge was nominated, Los Angeles newspapers--I know the Senator supported his nomination, or was responsible perhaps for it--were filled with quotes made by his supporters. One supporter happened to be Ramona Ripston, the executive director of the American Civil Liberties Union of Southern California. Now, I would like to state for the Record that I doubt that the ACLU shares my concerns about the Ninth Circuit's activist bent. In any event, Ms. Ripston welcomed Paez' nomination to the Federal Bench describing Judge Paez as: ``A welcome break after all the pro-law enforcement people we've seen appointed to the state and federal courts''. From the ACLU's position, Ms. Ripston's support for Judge Paez appears to be well-justified, as Judge Paez soon began to issue anti- law enforcement opinions. One case in point involved the case of Los Angeles Alliance for Survival v. City of Los Angeles, in which Judge Paez granted an injunction sought by the ACLU which prohibited the city's ordinance prohibiting aggressive panhandling from taking effect. The city had an ordinance against aggressive panhandling passed by the people of Los Angeles. And a judge just up and threw it out, and said it was unconstitutional; no matter what you pass, I am the judge; no good, out. The ordinance, incidentally, was passed following the stabbing death of an individual who would not give a panhandler 25 cents. In his decision, Judge Paez viewed the Los Angeles ordinance as ``facially invalid'' under the ``Liberty of Speech Clause''--I don't know exactly what that is. But the ``Liberty of Speech Clause'' is found in the California's State Constitution. Listen to how one legal commentator described the judge's ruling: Judge Paez struck down the law as an unconstitutional restriction on ``speech'' and issued a preliminary injunction against its enforcement. He found that the ordinance constituted ``content based discrimination'' because it applied only to people soliciting money. Just hope Judge Paez doesn't get his hands on any laws against extortion, bribery or robbery. ``Stick 'em up'' could become Constitutionally protected speech in certain parts of California . . . The identical law has been upheld in other parts of California by other federal judges, but thanks to Judge Paez, the ordinance lawfully enacted over two years ago has yet to be enforced in Los Angeles.

Mr. SESSIONS. Very well.

Mr. SESSIONS. The New York Times had an article some time ago, saying this: The Ninth Circuit, which sits in San Francisco, remains the country's most liberal appeals court, and there is some evidence that the Supreme Court's conservative majority-- I would say it is a moderate to conservative majority-- views it as something of a rogue circuit, especially on questions of criminal law and even more particularly on the death penalty. That is from the New York Times, which certainly is not a conservative organ, particularly on legal matters. I think they are misunderstanding the importance of a lot of legal matters, frankly, but that is a comment they made, their observation. That is why the Ninth Circuit has been reversed so regularly. As a matter of fact, I will mention a little later in my remarks--I believe in 1996-1997--there were 17 reversals in that year of the Ninth Circuit by a unanimous U.S. Supreme Court. In other words, the liberal and conservative members of the Supreme Court, in 17 out of 27 cases reversed, unanimously agreed the Ninth Circuit was wrong. I think that is a matter that we ought to think about. I may go into that more because it is important to my analysis of how we ought to vote on these nominees. There are two purposes for my remarks today. I would like to enter into the Record the results of the research I have done on two nominees--Mrs. Berzon and Judge Paez--for the Ninth Circuit Court of Appeals. My research forms the basis for my opposition to their nominations. I would like my colleagues who do not sit on the Judiciary Committee, as I do, and who were not part of the initial evaluation process of these nominees to have the benefit of the full record and my observations on it. Secondly, I would like to take this opportunity to ask my colleagues to consider the points I am raising and to join me in opposition to these nominees. First, I would like to mention, I believe it is 330 or 340 nominees that have been brought forward by the President. Only one of those 300- plus nominees has been voted down on this floor. We now have two nominees that have been held up for some time because they have been particularly controversial, and they are nominees to a particularly controversial circuit. That is what the Senate ought to do. We are not a potted plant. We are not a rubber stamp. We have given fair and just consideration to nominee after nominee after nominee of this President. We have confirmed his nominees overwhelmingly; 300- something to 1 have been confirmed to this date. In terms of vacancies, nearly half of the vacancies that now exist in the Federal courts in this country are because the President has not submitted a nomination yet. This Senate cannot vote on a nomination when we do not have a nominee. The President is required to nominate. He ought to be careful. He ought not to rush in and pick the first name that comes out of a hat. But I am just saying that we are close to what experts have declared to be a full employment Federal judiciary. I do not think that we have a crisis in failing to move nominees. We are going to continue to move them. We are going to have other votes on nominees this year; some which I will support and others who I will oppose. I do not believe we ought to take these decisions about how to vote on a judicial nominee lightly. Having had to undergo, myself, an unsuccessful confirmation process for a Federal judgeship, I know better than most the thoughts and feelings these nominees have. That is why I always make sure I treat them in a respectful manner. I do not believe they are people who are unworthy in a lot of ways. What I believe is that their deeply held personal views are such that even though I might respect them as a person for those views, I do not believe that at this point in time, for this circuit, these nominees ought to be approved. I believe that very deeply. That is why I am here and share these comments. I have done my best to ensure that the concerns I have raised about a nominee have been fair and objective over the 3 years I have been in this body. I try to ask questions that are appropriate and make sure that we are treating people fairly. For a variety of reasons, I regrettably have concluded that Berzon and Paez should not be confirmed. Let me talk about the Ninth Circuit in a fashion that I think is fair and gives an overall perspective. First, we need to look at the problems that are in existence now in this circuit. It is the largest circuit, covering Alaska, Hawaii, the State of Washington, Oregon, California, Idaho, Nevada, Arizona, and Montana, as well as Guam and the Northern Mariana Islands. This amounts to roughly 38 percent of the country's area, approximately 50 million people. In recent years, this circuit has been singled out to be the subject of increased scrutiny by the Supreme Court because of its tendency to engage in judicial activism. In other words, roughly 20 percent of the American population lives in this circuit in which the rule of law is regularly being challenged by the issuance of activist opinions by ideologically driven Federal judges. But do not just take my word for it. We have the article in the New York Times describing this circuit that I just quoted. The court's conservative majority--five members of the Supreme Court of the United States constitutes a majority; they are all not conservatives, a lot of them are more moderate judges--they view it as something of a rogue circuit. That is strong language, I submit. If you look at the reversal figures for the Ninth Circuit, I believe you will tend to agree with the assessment made in that article. In my experience as a Federal prosecutor, I found that a reliable index of a court's performance is the history of the circuit's reversals. For the benefit of individuals who may be watching this debate at home and are not familiar with the workings of the Federal judicial system, a reversal rate is simply the measurement of the number of times a decision entered by that circuit is being reversed by the U.S. Supreme Court--changed or reversed because the lower court's decision was incorrect. These figures illustrate the instances in which a judge, or in this case, a circuit is acting incorrectly. Reversal rates are a warning system of judicial activism and judicial error. What do the statistics say? Do they lend validity to the New York Times charge I just cited? As a matter of fact, a fair reading of the reversal figures for this circuit does reveal that year after year, the Ninth Circuit leads the Nation in the number of times it is reversed in total numbers. It is the highest in percentage. By way of illustration, allow me to present the reversal figures for the last three terms for which I have the data. In the 1996-1997 term, 28 cases were reviewed; that is, the Supreme Court agreed to hear 28 cases that arose out of the Ninth Circuit. Many times the Supreme Court does not hear a case unless it is important for them to hear it. They hear a case because a circuit rendered an opinion that they believe is plainly wrong. They hear a case if a circuit has rendered an opinion that is contrary to the other 11 circuit courts of appeals. They think there ought to be a uniform answer. So the Supreme Court renders the answer and, once it does, every circuit is bound by that answer. But in terms of the cases that are being heard by the Eleventh Circuit, hundreds, thousands of cases go through that on an annual basis. And most of those, even if wrong, will never be reviewed by the Supreme Court. The Supreme Court cannot and will not review every wrong case in America. It picks those that are most important, that will likely perpetuate an error, and tries to correct it and create a uniform system of law in the country. Again, there were 27 out of 28 cases in 1996. That, in my view, is a stunning figure. It is a figure unmatched at any time by any circuit anywhere. In the 1997-98 term, the court reviewed 17 opinions and reversed 13 of those in the Ninth Circuit. In 1998-99, they reviewed 18 opinions and reversed 14. And this year, they have only heard, to date, six opinions from the Ninth Circuit, and they reversed all six of them. This is from an article that appeared in the University of Oregon Law Review in 1998. The title of the article was ``Reversed, Vacated and Split: The Supreme Court, the Ninth Circuit, and the Congress.'' The author, realizing this is an important, newsworthy item, wrote a law review on it and said: Another interesting phenomenon is that the Supreme Court unanimously agreed--across the political spectrum--that the Ninth Circuit was wrong seventeen times during the [1996-97] term. This is a fairly remarkable record, considering that the rest of the Circuits combined logged in with only twenty unanimous votes, seven of which were affirmances. Only 13 unanimous reversals throughout the whole United States, 17 in the Ninth Circuit. This circuit is out of step, in my view. In other words, over the 3-year span from 1996 through 1999, the Ninth Circuit has reversed 54 of 63 cases examined by the U.S. Supreme Court. That means that of the cases the Supreme Court has reviewed, the Ninth Circuit has been wrong a staggering 86 percent of the time. No other circuit in my analysis approaches these kind of numbers. If this number were not bad enough on its own, it becomes truly appalling when it is compared to the number of reversals in the other circuits. Over the same 3-year period in which the Ninth Circuit was reversed 54 times, the next highest total number of reversals in any circuit was 14 out of 24 cases reviewed occurring in the Eighth Circuit and 14 reversals out of 22 cases in the Fifth Circuit. In fact, the Ninth Circuit is so substantially wrong so much of the time that it even leads in the number of instances in which the U.S. Supreme Court is unanimous. Unfortunately, the Supreme Court has a limited docket and gets the opportunity to only review a relative handful of cases which any of the circuits or the Ninth Circuit adjudicates. So while the reversal rates are very revealing on their own, they fail in one troubling regard. They are unable to accurately quantify the number of activist or just plain wrong decisions that get through and become established law in the circuit because they cannot be reviewed by the Supreme Court. This is a sobering thought, and it is why we need to insist that we will only confirm judges to the Ninth Circuit who will move that court into the mainstream of American legal thought and not confirm judges who will continue the Ninth Circuit's leftward drift. That is the plain duty and responsibility of all of us in this body. Many of these are just not trivial errors. If it is heard by the U.S. Supreme Court, it is a significant error. These reversal figures are not being inflated by mere inadvertence. Instead, they are the products of a seeming desire by the circuit to make law when the opportunity arises. In fact, I will describe one of the cases the Supreme Court has reversed in which the Ninth Circuit, without restraints, twisted the Constitution to further what appears to me to be their political goals. In the case of Washington v. Glucksburg, the Ninth Circuit struck down the State of Washington's ban on assisted suicide by reading a constitutionally protected ``right to die'' into the 14th amendment. The 14th Amendment doesn't say anything about a right to die. I revere the text of the Constitution, and I assure my colleagues that there is nothing in that amendment that says anything about a right to die. Just look it up. Despite the clear language of the 14th amendment, the Ninth Circuit judges chose to read into it the social policy outcome the circuit desired, overturning the will of the people of Washington who had voted for this law. That is what we are talking about. We have elected representatives in the State of Washington, elected by the democratic process, a free vote, held accountable. If they vote wrongly, they can be voted out of office. But what about Federal judges who are appointed. The only review they ever get is in this Senate. If we fail--and we do too often--they just go right on the bench and serve for life. No matter how wrong their opinions are, they get to stay in there. Who ought to set policy in America if we have a republic? I believe this a responsibility of the elected branch, not the lifetime- appointed branch. The reason these issues are important is that it goes to the question of fundamental rights of the people to set the standards in America. The Ninth Circuit threw out the law that was passed by the legislature because the Ninth Circuit judges chose to read into it the social policy they desired even though it meant overturning the will of the people. This is what we classically call judicial activism. In an ironic twist, the Ninth Circuit employed their apparent belief in a living Constitution, which is what liberal people say the Constitution is, a living document. It is a piece of paper; it is not living. It is a contract with the American people entered into by our ancestors. The Ninth Circuit evidently said it is a living document, and, ironically, they read into this living document a right to die. Upon review, the U.S. Supreme Court corrected the Ninth Circuit and restored the validity of Washington State's ban on assisted suicide. In blunt language, the U.S. Supreme Court reminded the Ninth Circuit that: * * * in almost every State--indeed, in almost every Western democracy--it is a crime to assist suicide. The States' assisted suicide bans are not innovations. Rather they are longstanding expressions of the States' commitment to protection and preservation of human life. * * * I submit to you, the Supreme Court was directing that language to them directly. The judges on that circuit knew that was a rebuke, in my opinion. In fact, the Supreme Court further used the Glucksburg case to illustrate just how far out of the mainstream the Ninth Circuit is. The Supreme Court wrote further: Here * * * we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues to explicitly reject it today, even for terminally ill, mentally competent adults. To hold for the respondents [the way the Ninth Circuit did] we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state. But these unelected judges, with lifetime appointments, in no way accountable to the American people, just blithely go in there and wipe out the right, the statute of the State of Washington, and claim that the 14th amendment to the Constitution of the United States directed them to do so. And that is bogus because there is nothing in the 14th amendment that says anything of the kind. They got busted by the U.S. Supreme Court for it. That is just one of the cases. This is a recent one, and that is the reason I quoted it. Glucksburg does not stand by itself on this dishonorable list of activist Ninth Circuit opinions that have been struck down, of course, but it is a perfect illustration of judicial arrogance that seems to permeate many judges, particularly in this circuit, and it helps frame the point that many of us who care about maintaining the rule of law in this country constantly make. We have a responsibility as Senators to ensure that the judicial branch is composed of individuals who will faithfully interpret the Constitution and the laws of this country. If we have doubts about a nominee's ability to do that, then we have a responsibility, a constitutional duty, if you will, under our advise and consent power to reject the nominee. The President has the power to nominate, but we are given the power to advise and consent, which means in effect, in the words of the Constitution, we have a right to reject a nominee if we do not consent. While statistics and written opinions are useful in looking at this troubled circuit, they do not get to the heart of the matter in that they don't answer the fundamental question as to why this circuit behaves in such an aberrational manner. I have looked at these issues and what legal analysts have said, and I want to share findings with you. Essentially, my findings strongly support an argument that one of the core problems with the Ninth Circuit is its composition of judges. The Oregon State Bar Bulletin, in 1997, identified the current composition of judges on the Ninth Circuit as a primary cause of the circuit's extraordinarily high reversal rate. In fact, the author found: There is probably an element of truth to the claim that the Ninth Circuit has a relatively higher proportion of liberal judges than other circuits. . . . Furthermore, the analysis concluded: The effect of the Carter appointments is that, relative to other circuits, there is a greater likelihood that a Ninth Circuit panel will be comprised mostly of liberals. This may result in decisions in some substantive areas that are out of step with the current thinking of the Supreme Court and other circuits. In other words, when you have a substantial number on there, and a panel is randomly selected of three judges to hear a case, that is the way they do it. Three of the 20-some other judges will be selected to be on the panel. All three of them could be activist selectees. So the opinion may not even really speak for the Ninth Circuit. That points out again how important it is that we have a balance on the circuit to avoid panels routinely coming up that are out of step with mainstream legal thinking of the Supreme Court and other circuits throughout the United States. One of the big reasons for this is, there was a major expansion of the size of the Ninth Circuit during President Carter's administration. It allowed him to make a number of appointments--an incredibly large number of appointments--and now we see that President Clinton has similarly successfully appointed a large number. Of the 23 judges that are active on the circuit, Democratic Presidents have appointed 15 of them. In fact, President Clinton has already appointed 10 and confirmed them to this circuit, and he has 5 additional nominees, including Paez and Berzon, awaiting Senate action, giving him the opportunity to have personally, himself, appointed 15 of the 28 judges. So it is easy to see why activists and liberals are interested and chomping at the bit to push these nominations through, so it will solidify the stranglehold that Democrats and liberal activists have on this court. In fact, this is the impetus that drives me to believe we need to and are justified in reviewing more carefully nominees to this circuit. It is all right for there to be Democrats and for people to be liberal; every judicial nominee who has come up here since the Clinton Administration took office has been a Democrat and liberal. But the question for these nominees is: Will they remain disciplined and honor the law? Do they have a history and a tendency to impose their will under the guise of interpreting law? This is the fundamental question we have to answer. I voted against Raymond Fisher to the circuit last year as I believed he was an activist nominee who would perpetuate this circuit's leftward drift, and I was joined by 28 colleagues in opposition to that nomination. I was able to support the nomination of Ronald Gould to the circuit after reviewing his record and hearing him in the Judiciary Committee. I believed him to be someone who was likely to serve as a moderating force to temper the activism of this circuit, and I believed his nomination was proof that my efforts, which I communicated to the White House, to begin sending moderate nominees forward was beginning to pay off. Regrettably, however, neither Judge Paez nor Mrs. Berzon meets that standard. I do not believe they will restore balance. As a matter of fact, I believe their nominations represent a further move to the left. Let's talk about Judge Paez. I don't have anything against him personally. He is a fine man, and he has a fine family. But it should be noted that both of these nominees, Berzon and Paez, were controversial even in the Judiciary Committee. Both came out of the committee with only a 10-8 vote--pretty unusual--which is the highest level of opposition any judicial nomination faced in the committee. This vote reflected serious concerns committee members have with regard to the records these two nominees have compiled over their careers. In my opinion, the record of each indicates that confirming them to this circuit would be like adding fuel to the fire. I want to begin this discussion by focusing first on Judge Paez. First, he is, in fact, a self-proclaimed activist. This is remarkable. If there is one thing the Ninth Circuit does not need, it is a nominee who will maintain activist traditions. However, his own words show that he is just that. First, he called himself a person with ``liberal political views.'' While this is hardly incriminating in itself, these statements do indicate some of the tendencies he might have. In his own words, he described his judicial philosophy as including an appreciation for--I will read this to you and ask you to think about these words carefully. This is from the Los Angeles daily Journal: The need 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. . . . So as a failure, in his view, of the political process to resolve a certain political question, the courts can act, and they must act. He goes on to say: because in such an instance [Paez explained] ``there's no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process.'' Now, that is a statement by an already sitting judge that a judge has the power, when a legislative body fails to act, to do what that judge believes he must to solve the policy problem before him. I submit to you, that is the very definition of what activism by the judiciary is. Think about this. When a legislative body fails to act, it has made a decision just as certainly as if it had decided to act. A decision not to act is a decision. It is a decision made by elected representatives, and if the people who send them to Washington or to the State legislature don't agree, they can remove them from office. But can you remove a Federal judge who declares he has a right to act when the legislature does not? Can you remove that person? No, you cannot, under the Constitution, because he has a lifetime appointment with no ability to be reviewed whatsoever. That is one of the most thunderous powers ever given by our Founding Fathers, I have to say. In many ways, it works well. Judges are free, for the most part--Federal judges who I have practiced before for 15 years during the majority of my career as a professional lawyer in Federal court, almost entirely. I respect Federal judges. But when you have a Federal judge who has an activist mentality, who believes that he or she has the power to solve political questions when the legislature does not act, you have the makings of a rogue jurist, and you cannot contain that person. It costs litigants thousands and thousands of dollars to appeal their rulings. They cannot always get to the Supreme Court. The Supreme Court is too busy. Even if they have a bad ruling, they can't always get there to get it reversed. Sometimes they are just stuck by these rulings no matter what they do. That is wrong. That is a philosophy of adjudication that is false. It is precisely what Americans are concerned about. It should not be affirmed by this body in approving this judge to a circuit that is already out of control, in my opinion. The record indicates that the judge is hostile to law enforcement. We have to be careful about that. I prosecuted many years, as I said. A judge can rule against a prosecutor, and he cannot appeal. If he rules against a defendant, the defendant can appeal.

Mr. SESSIONS. The Seventh had three cases, and those were reversed. Over the 3 years--I have done the numbers--the Ninth Circuit remains No. 1 in the number of cases reversed.

Mr. SESSIONS. All right.

Mr. SESSIONS. I do admit, in 1996, it looks as if the D.C. Circuit and the First Circuit had one case considered by the Supreme Court and it was reversed. D.C. Circuit had one, and it was reversed. And the Federal appeals court had one, and it was reversed. Let me show you an article from the New York Times.

Mr. SESSIONS. The D.C. Circuit had one case and Federal Circuit had one case reviewed by the Supreme Court, whereas the Ninth Circuit had 27 out of 28 reversed.

Mr. SESSIONS. Yes.

Mr. SESSIONS. Mr. President, you have practiced in the Ninth Circuit. So has the distinguished assistant minority leader. There is no doubt that over a period of years, the Ninth Circuit has been reversed more than any other circuit. Their record of having 27 out of 28 reversed in 1 year is absolutely unprecedented. It has never been approached by any other circuit. As a Federal prosecutor who spent 15 years full time in Federal court, I can assure my colleagues there is no circuit in America that is looked on with less respect on questions of law enforcement than the Ninth Circuit. It is the furthest left Circuit in the American judiciary, and there is no doubt about it. There are some great people there. They are wonderful. I would not mind having them over to my home discussing great legal issues, but they have been outside the mainstream of American law.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, is this going to make people better? Is it going to encourage their best instincts or will it encourage poor instincts? Will it encourage bad behavior? If they vote for or against bills on that basis, will it make us better people? That is an important issue. We ought to think about it. We encourage a lot of activities in America through our tax policies. We encourage people to give to charitable institutions, churches, and schools by making those contributions tax deductible. We help families raise their children by providing a deduction or a child tax credit, which we passed a few years ago. We encourage savings by making the interest on individual retirement accounts tax free. I have introduced a bill to make the interest that accrues on savings for prepaid college tuition plans tax free because we ought to encourage saving for education and have families and children invest in their education. In many States--Kentucky, for example--the average contribution to those plans is $47 per month. They are middle-income people who care about their children's education. They are saving for their children's education, and we are taxing them on the interest that accrues on that savings for college education. In my view, that is bad public policy. We discourage and penalize other activities we feel we can do without but we do not want to prohibit entirely. We tax cigarettes at a very high rate. We know that tobacco is bad for our health. It is not a good thing to do, and we have pretty high taxes, higher taxes every year it seems, and rightly so. We tax gasoline. We can talk about the cost of gasoline. Last year in Alabama, gasoline was under $1 a gallon in a lot of places. Forty percent of the cost of that gallon of gasoline was State and Federal tax because we do not want people to use more than they need, we want to keep supplies strong. We do not want to import anymore than we have to, and we want to reduce pollution. There are other taxes and penalties on people who pollute. That is one of the policies. We have higher taxes on alcohol than we do a lot of other products. We do not tax, for example, prescription drugs--most States do not. There is sales tax on all kinds of products that are sold in our grocery stores, but we do not tax prescription drugs because we know people need those drugs, and we do not want to penalize that. Another thing we tax which I must add to that list is marriage. We are taxing and penalizing marriage to an extraordinary degree. At church Sunday in Alabama--it was a pleasure to get back home--my minister told a story about an old man who had never been to town. His grandchildren said: Grandpa, you need to go to town. He finally agreed. He had never seen a zoo, so they wanted to take him to a zoo. They took him to a zoo, and he came upon a giraffe. He stood there and just looked at that giraffe. He walked around that giraffe, he studied that giraffe, and he spent 2 hours looking at that giraffe. He finally said: I still don't believe it. We are at that point with the marriage penalty. Some people do not believe it is happening, that we are taxing marriage. It is very real. Talk to young people all over America today and ask them about what is going to happen to their taxes when two of them, particularly if both are working, are married. It costs them a lot of money. We have to end this. We need to end this tax penalty. The President said he was for it. The proposal he made in his State of the Union Address and subsequently is insignificant in meeting that challenge, but it is an admission that he believes there is a problem. Let's look at it. Soon we are going to be seeing legislation in this body to deal with it. I hope we will study it carefully and end this governmental policy of penalizing and discouraging marriage. That is wrong. We need to encourage marriage. We do not need to penalize singleness, but they ought not have a financial incentive to remain single. We should not have public policy that favors singleness over marriage. We should have a fair policy that does not favor one over the other. I have a young staff member who married recently. He had been dating his fiancee for over four years and they finally married. He tells me they will pay over $1,000 a year more having married. They married in July of last year, and they have to pay the marriage tax for the whole year. It is $1,000. That is roughly $100 a month out of their budget simply because they quit being engaged and were married. That is not right. That is wrongheaded. We do not need to continue this. A good friend of mine, a fine person, unfortunately went through a divorce. She divorced in January a year ago. She told me that had they divorced in December, it would have saved them $1,600 on their tax bill. That is approximately $130 a month. They gave up that much because they did not divorce earlier. Can you imagine a governmental public policy that provides a subsidy, an incentive, a bribe almost, to divorce? That is wrong. We do not need to do this any longer. I believe in this strongly. This is a disadvantage too often to women. Women are just now breaking through the glass ceiling and making higher incomes. Many on the other side of the aisle and the President say: We do not want to deal with this problem of higher income people; we only want to have a marriage penalty elimination for the lowest income people. What is wrong with two people working and doing modestly well today? Here is an example. Heather's income is $33,000. Her husband Brad's income is $37,000. Their total income is $70,000. It is the American dream, to do well and make those kinds of incomes. That is not rich. You cannot buy a house, buy a car, and educate your children well if you are not making in that range. It is harder and harder to do those things if you make less than that. Everybody knows that. Those are salaries one wants to see more and more Americans achieve. Because they are married, they may take a standard deduction of $7,100, as well as two personal exemptions of $2,700. This leaves them with a taxable income of $57,500. If they were cohabitating, living outside marriage, Heather and Brad could each take a standard deduction of $4,200. Heather's taxable income would be $26,000; Brad's would be $30,000. Their combined taxable income would be $56,000. Because they are married, Heather and Brad must pay $1,400 more than if they were cohabitating. To them, it means approximately a $40-a-month charge. That is a policy we should end. I believe this Congress is committed to it. We are going to continue to proceed to work through the fine details of all these tax regulations and the thousands and thousands of tax pages to make sure we are doing it right and fair. But I do not think a couple making $80,000 or $90,000 or $100,000 ought to be denied equity. Why should they be taxed more than two single individuals making $100,000 collectively? They do not have to pay the extra taxes. We are dealing with an issue whose time has come. The marriage penalty must end. We are not against singleness. I do not think there should be any battle between people who are single, who think it is some sort of tax advantage, and those who are married. We do not believe there should be any tax advantage. We are simply trying to level the playing field. This is a move toward equity and fairness at its basic level. It is a move to encourage good public policy, good activities, such as marriage and raising a family, and not taxing them. It sets a goal for us that we ought to pursue. We ought to quit discouraging marriage, quit taxing and penalizing it, and allow people to make their choices in this country as they choose without having the tax man sticking his nose in their financial and personal matters. I thank the Chair for this time. I am glad to see the Senator from Wyoming here. I appreciate his leadership. I know the Presiding Officer has been a champion in eliminating a lot of inequities in the Tax Code. I thank him for his leadership in that regard. I yield the floor.