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2006-07-04 10:46

  It is exciting and very gratifying for me to stand here before this packed ballroom on behalf of the American Constitution Society annual conference. It is also a great treat to be introduced by someone whom I admire enormously who has blazed so many trails and has demonstrated a commitment in her own life and on behalf of her clients and her country an absolute devotion to the underlying principles and values that everyone in this room believes is what distinguishes the great American experimental dream from all other in human history. Cheryl Mills is an exceptional human being and a great friend and I thank her for those kind words. But it also goes to show that if you want a good introduction, have a friend do it. It's one of my rules of life. Write that down. And I want to thank Richa also for her continuing commitment to ACS and thank you for your leadership. I want to acknowledge and really recognize and applaud the people who have made this happen. Clearly Peter Ruben and the board of directors of ACS have carried forth on their vision of what this organization can become. And I am grateful to Peter and to all of you. And I want to thank Lisa Brown for her willingness to assume the helm of ACS and her very steady hand in guiding it and thank her for taking the time.

  As I look across this crowd there are so many people whom I would like individually to acknowledge and thank, some of whom I haven't seen since the end of the Clinton Administration. Which only goes to show you that we need to get together more often. And many others who have determined that the current direction of our country, the actions of this administration can no longer be observed from the sidelines and so you have been called back into action and I thank you for it. But I want to especially thank two people who are here whom have meant a great deal to me personally and professionally. They happen to be married to each other. Ann O'Leary and Goodwin Liu. Goodwin has been my partner in the work I've done for the ACS and the speeches that I've given at Georgetown and now today. We are losing him to Boalt University Law School at Berkeley. And we certainly wish him well. They are very lucky to have him on the faculty. And Ann O'Leary who has been my Legislative Director and played a major role in all of that legislation that Cheryl referred to, the sponsoring and the co-sponsoring. Of course it really is a little bit misleading to refer to that because when I first arrived in the Senate it was really like the talking dog syndrome and many people did come up and say, 鎛ell, gee won't you co-sponsor something with me.? Sort of I guess to see whether I'd say yes. And of course I said yes. And so I had no idea what I have sponsored for the last two and a half years. The biggest problem I got into and Ann will remember this is Senator Wayne Allard a veterinarian from Colorado. A Republican senator colleague of mine asked me early on if I would be the 51st senator in the new session two years ago now to co-sponsor his bill banning cockfights. And he gave me a brief description as a veterinarian why this was such a horrible thing and we needed to stop these roosters from being transported back and forth across borders and just put an end to cockfights. I had never before had a position, contrary to what some of you might expect. And so I said, 鎛ell, sure that sounds like a thing that I can support. Why not??Well then there were two problems with it. A number of my constituents who come from countries in the south, primarily the Caribbean and Latin America, really enjoy cockfighting. And even though it's illegal it is a big cultural event and so I ran into a little bit of lowback from some of my constituents. But the bigger problem was the tabloids in New York City. All I did was say to Senator Allard 镓ure I'll co-sponsor that. I'll be the 51st co-sponsor.?Front page tabloids screaming headlines. Picture of me, picture of a cock. 蹝linton says no to cockfighting.?I told Senator Allard this is a little bit hard to understand how I can be the 51st senator and nobody else gets headlines where they come from because they signed onto legislation. So it's been in every way an adventure and I wish Ann and Goodwin Godspeed as they head out to the west coast.

  I also want to reiterate Cheryl's point about my strong conviction of the importance particularly now of this organization. It has been clear for a number of years that there really is a vast right wing conspiracy. And my only regret was using the word conspiracy because there is absolutely nothing secret about it. It is a network with an agenda that truly is intent upon turning the clock back on much of what we have come to believe is the American journey that we signed on for that our founders basically laid down the planning for and that we have over more than 200 years come closer to realizing. And because of the extraordinary changes in American law, society, politics, and economy over the last 50 to 100 years, we have made giant strides toward a more perfect union. There is absolutely no doubt about it. And apparently that just rubs some people the wrong way. Whether it's New Deal legislation that gives people the right to organize and join unions or that says that they should be paid if they work overtime or that they should have certain levels of occupational health and safety requirements, or whether it is the advancement of human dignity and rights on every front, or whether it is trying to reign in uncontrolled economic power and actually worry about things like monopolies and antitrust which go back to the turn of the last century. There are just a lot of things that happened in the 20th century that some people apparently just couldn't get over. And so starting in the 30s, 40s, 50s, 60s and with greater acceleration and commitment in the 70s until the current time, there has been a commitment to trying to go back to some golden age and Walter Dellinger and I were talking about a panel that will be held tomorrow. They're trying to figure out what is that golden age that they want to go back to. Is it back to the 1950s white suburbs or family life, which I grew up in and write about in my book and am very grateful for but didn't exactly describe the universal experience in America. Is it back before Brown v. Board when people were told that in this country we should try to integrate our schools and provide equal opportunity in fact, not just in theory? Is it back before the New Deal and many of the changes that actually saved capitalism in the eyes of many historians? Is it back to before the progressive era when children were told that they could no longer work in factories and immigrants were being given the rights and tools to assume a role in American society? Is it back to crony capitalism and the Robber Baron era? I don't know. I think it's a combination of all of that. I used to say that the Bush administration seemed to be intent upon undoing the Clinton administration, which look I confess I took it personally. But I understood it to some extent. It seemed as though the administration arrived not only committed to undoing the Clinton administration but the rules of arithmetic and the logic of evidence. And therefore created this evidence free zone that we're now inhabiting.

  Even if it works, if Bill Clinton did it you have to undo it. Then I realized it wasn't just undoing the Clinton administration. They were rapidly heading to undo Franklin Roosevelt. And I think they're on their way to Teddy. So there's a lot at stake in your being here and in our understanding what the agenda and the mission of those who have a different view of American history and of our current prospects for the kind of future we wish to build together. And it is also the case that for many people this has only become recently apparent. Because it seemed impossible to think that there would be a concerted effort to turn the clock back on so many fronts. But indeed that is what I see every day in the Senate. And I give tremendous credit to the current Republican administration and their allies in the Congress because they truly are mission driven. They know exactly what they want. And they are focused and relentless and absolutely undeterable. Therefore if you believe in politics that in physics that there has to be an action and a reaction we've been a little slow on the reaction part of it. And part of the challenge today is to figure out how we can best convey to the American public what's really happening, because if the American public really understood much of this administration's agenda they would reject it. There's no doubt in my mind. It is far outside both the mainstream political, economic, and social thought. And it runs counter to the expectations that the majority of American's have about what America will look like and where their role and place will be in that future America. So we have our work cut out for us but part of the underlying political reality as I see American history is that optimism about our prospects and commitment through political action to obtain them will be successful. I really really believe that. But in the absence of an organized effort not just through electoral politics but equally if not more important in what you're doing here today and what others are beginning to do, we will not be successful. So as I lay that sort of grounding as to how I see what our challenges, I want to talk just for a few minutes on the issues surrounding the President's nominations to the judiciary. And I do so with the awareness that many in this audience have been following this and understand what's at stake. You realize that as of last night I think we have confirmed 145 of the administration's nominees. And there have only been a handful who raised such serious questions about their fitness to assume these lifetime positions that the Democrats have been united in opposing them. I don't know that judges, nominees, the judicial process, and the judiciary committee, what happens on the floor of the Senate is of great concern to the majority of Americans. I don't know that it makes any difference in the voting patterns of the vast majority of voters. I've never seen that. But I think what the administration has set out to do is not only to reward its far right by nominating people who are sure to provoke a reaction by the Democrats. But picking those who they wish to provoke that reaction to try and create other questions as well. That perhaps Democrats aren't sympathetic to women or to Hispanics or others. And as part of that strategy to really drive sort of nitch politics, lots of media and outreach to certain communities to say 闒ook you know here's this one nominee that Democrats are standing in the way of?and in some sense try to use it as a proxy for a much larger debate. And of course it is part and parcel of the larger mission of transforming the American judiciary to control the executive and legislative branches as well as the third branch of government. And to use the opportunity to appoint relatively young activist, conservative judges and lawyers who will be on the bench for decades so that the excesses as they see it on the right of the Warren court forward can be undone. Federalist Society speaks openly of the constitution in exile. Apparently it went into exile when the Brown v. Board education decision was decided which was surprising to me since I pledged to support it and I'd like to know where it is if it's missing and in exile. I'd certainly do everything I can to bring it home. But of course it's a metaphor that really does express the larger mission that this administration and its allies have undertaken. Now last night the Senate was to have held a cloture vote on President Bush's nomination of California's superior court judge Carolyn Kuhl to serve on the United States Court of Appeals of the 9th circuit. Now the vote didn't take place because that's what happens when you have a meltdown as we've had in the last 48 hours in the Senate where the right hand didn't know what the far right hand was doing. It was organized enough to figure out are we going to vote Bush through this really terrible energy bill that would undermine any future prospects to become energy self sufficient. Or are we going to do this sort of cultural, political show on the floor of the cloture votes of our nominees. It became really quite an entertaining spectacle for those who can afford to watch it without worrying about the consequences. But that would have been the fourth cloture vote on a judicial nomination this week. On Tuesday, the Senate voted on the nomination of Texas state Supreme Court justice, Priscilla Owen to serve on the 5th circuit. On Wednesday the vote was on the nomination of Miguel Estrada to serve on the D.C. circuit. Yesterday morning's vote was on the nomination of Alabama Attorney General William H. Pryor Jr. to serve on the 11th circuit. And almost all of my Democratic colleagues and I voted against cloture and all three of the cloture motions failed. But I think that that is just the beginning of the story and part of what I hope ACS can do in your collective as well as individual capacities is to speak out about this current nominations process and more broadly about the direction the administration wants to take the federal judiciary and American law. Now last month after the Supreme Court concluded its most recent term, advocates of equality and civil rights breathed a collective sigh of relief as the court turned in a truly remarkable set of decisions, sustaining the act of ability of the Family and Medical Leave Act, upholding affirmative action in higher education admission, and striking down anti sodomy laws of the frontal liberty and dignity of gay and lesbian Americans. So there was much to breathe a collective sigh of relief over in this term. And I think that for many who feared that these cases would not turn out the way they did, that has been a very welcome development. But I think these decisions should be put into a more sober and long term perspective. We cannot allow these recent decisions to lull us into complacency with the overall direction of American law. There remains much to be concerned about and let me offer three observations to explain what I mean.

  First although the trio of decisions that I mentioned are remarkable for occurring all within the same term, each outcome taken individually can hardly be characterized as remarkable or unexpected, even from this court. The Family and Medical Leave Act supported by broad bipartisan majorities is common sense legislation intended to put working women and men on equal footing in the eyes of employers when it comes to caring for a sick child, or family member, or new baby. To exempt states from this statute, would have been tantamount to ignoring the many ways in which state laws historically affirm that in the past a women's place is in the home and therefore denied women meaningful choices to participate in the workforce and then chart their own destinies. The affirmative action decision likewise met the predictions of many court watchers. Now of course the viability of the future of affirmative action was not a forgone conclusion as this case was being litigated. But in the end it would have been exceptional for this court or any court to contradict the shared views of the nation's most highly respected public and private universities, Fortune 500 companies, even highly decorated military leaders all at once. And finally the Texas decision was in the eyes of many long overdue based on widely held notions of personal freedom and human dignity. The power to criminalize private conduct occurring within the confines of one's own home is not a power consistent with our understanding of what it means to be an American or our legal tradition so the result in 2003 was not terribly surprising even though the language of the opinion was quite powerful.

  Second, any fair accounting with the direction of any Supreme Court cannot be made on the basis of a single term. The favorable decisions of these recent months should not obscure the torrent of aggressively activist and legally dubious decisions from terms past. Remember that this term's court is the same court that invalidated a federal law prohibiting gun possession within 1000 feet of a school, the same court that struck down the federal, civil remedy for victims of rape or sexual assault in the Violence Against Women Act; the same court that eliminated private losses to challenge recipients of federal funding whose programs and policies have racially discriminatory effects; the same court that dramatically curtailed plaintiff's rights for attorney fees in successful civil rights cases; the same court that all but neutralized the course of section 1983, a time honored tool for enforcing statutory civil rights; the same court that immunized states from the reach of federal lawsuits alleging discrimination on the basis of age or disability; the same court that allowed large corporations to compel job applicants to surrender their right to judicial enforcement of civil rights laws in favor or finding arbitration; the same court that limited states' ability to sensibly regulate tobacco advertising. And it is almost too obvious to mention, the same court that gave us Bush v. Gore, which made a mockery of one of our most cherished constitutional rights, the right to vote. So this term not withstanding the current court remains a very activist, quite radically conservative court. And when I say conservative I don't mean conservative from the standpoint of judicial methodology. Far from it. I mean politically conservative. Generally hostile towards civil rights; selectively protective of state prerogatives; and unabashedly devoted to economic freedom in a way that we haven't seen for decades. Now there are exceptions as we clearly saw but the trend is quite clear and we will have to follow this very closely going forward. I think it's unlikely that these trio of decisions I refer to are going to herald any kind of significant change in this court because I think the administration and this is my third observation has committed itself to nominating judges who boldly and unabashedly exemplify the politically I would argue radically conservative orthodoxy of the Rehnquist court majority. Even as we might take some comfort from the Family Medical Leave Act or affirmative action or the gay rights decision, let us not forget that President Bush has held up Justices Scalia and Thomas as his ideal Supreme Court justices and these two of course are the only two to vote against the majority in all three of those cases. They are the most extreme elements on the current court. Yet the President has promised to nominate judges who fit their mold. And in fact from what I see the President intends to keep that promise.

  Let me just say a few words about these very controversial nominees whose records or lack of records provide no confidence that they will consistently bring to their decision making the requisite temperament, judicial restraint, or commitment to the rule of law. Now no one denies that Miguel Estrada, President Bush's nominee for the D.C. circuit, has a compelling life story. But his personal story has provided no insight into what kind of judge he would be. Indeed he has made it especially difficult for the Senate to fulfill its constitutional duty to advise and consent because to this day we continue to have almost no information about his approach to law or legal reasoning. Remarkably in his confirmation hearing he could not name any decisions of the Supreme Court that he disagreed with or any he admired. Of course I don't think it's 鎍ould?I think it's 霢ould not.?Chief Justice Rehnquist has said and I quote 镓ince most justices come to this bench no earlier than their middle years it would be unusual that they had not by that time formulated at least some tentative notion that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not nearly unusual but extraordinary if they had not at least given opinions as to constitutional issues in their previous legal careers. I rarely agree with Justice Rehnquist but on this point I could not agree more. And I cannot support Mr. Estrada's nomination. It defies common sense to believe that a lawyer as learned and accomplished as his record suggests would have no views on how he might approach the law as a judge. In fact I think he basically is following orders from the Federalist Society not to answer these questions since the Federalist Society has been delegated the authority by this White House to vet all nominations and we know for a fact that they do it with quite a vengeance and so for whatever reasons Mr. Estrada has been told to say as little as possible. Now as troubling as his nomination is because of what we do not know about his views, the others are equally troubling because of what we do know. Take the 5th circuit nomination of Priscilla Owen, which the Senate Judiciary Committee rejected last year after careful consideration and this year President Bush made the unprecedented decision to re-nominate Justice Owen even though the committee had given her a full hearing once before. Now what had changed? Well, obviously the leadership of the judiciary committee had changed. But a glance at her writings leaves little doubt of her commitment to an anti-consumer, anti-employee, anti-choice agenda. In case after case she has even drawn criticism from her colleagues, conservative Republican colleagues on the Texas Supreme Court for how she has gone so far to inject her own political opinions into her work. Her colleagues have accused her of taking positions even more extreme than those argued by the litigants, of inserting inflammatory rhetoric into her writing, and of ignoring the plain meaning of an unambiguous statute. And of course White House Counsel Alberto Gonzalez described her position in a case invalidating parental notification laws as 鎙n unconscionable act of judicial activism.?By any measure, Justice Owen does not satisfy President Bush's own stated criteria that a judge must interpret the law, not legislate from the bench. And then there's the legal judgment of Carolyn Kuhl, a 9th circuit nominee that I and my colleagues believe really disqualifies her from consideration for the federal bench. She has taken positions during the Reagan administration arguing in favor of reversing the long standing IRS policy of denying tax exempt status to private institutions practicing racial discrimination, including Bob Jones University; a position that was repudiated by the Supreme Court 8 to 1. She certainly has taken a very staunch advocacy position against Roe v. Wade and written an amicus brief for the Thornberg case and yet at her confirmation hearing she refused to say whether she now believes that she could follow Roe. And if you look at her record as a California Superior Court judge, she dismissed a patently submitted complaint of invasion of privacy although inviting a unanimous reversal by the California Court of Appeals that relied on precedents going back as far as 1881.

  But finally of all the nominations, the nomination of Alabama Attorney General William Pryor of the 11th circuit is probably the most troubling of all. And again, put this into context for your colleagues, your clients, the American people. We're talking about four nominations that we have serious questions about and are exercising our constitutional duty to advise and consent versus 145 that we have confirmed. And many of those nominees are clearly not ones that I would have chosen or preferred but they didn't rise to the level of such profound concerns as the four I am discussing. Now if you look at nearly any issue concerning current law and issues that will come before the courts, Attorney General Pryor has a record of extremism. He is one of the most avid supporters of the Federalist Society and thereby promotes the view that states rights versus federal rights should be the appropriate means of regulating our lives, whether we're talking about choice or federalism or racial equality or separation of church and state. He has both made statements, submitted briefs, and has advocated in his official position as Attorney General to reverse settled law on many many of these matters. When you look at Attorney General Pryor I think too there is a very serious political battle that his nomination has exemplified and I want to focus on his separation of church and state position. He has said 雘he Declaration of Independence and the Constitution of the United States are rooted in a Christian perspective in the nature of government and the nature of man. The challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.?That is certainly a legitimate position for a person, a lawyer, a political figure to hold. And if that were all that one could point to there would not be the explosion that has occurred over this nominee. But instead on the judiciary committee, the Republican members sought successfully and unfortunately to inject religion into the debate over this nomination. I commend to you the Congressional Record of July 30th and I think it would be very important for as many of you as possible to read these exchanges. On the one hand Senator Leahy is the ranking member of the judiciary committee who has been an extraordinarily thoughtful and effective leader of the judiciary committee and who has tried very hard to prevent the emotions and feelings around these nominees to explode beyond appropriate boundaries and it has been a tremendous feat of self restraint on the part of Senator Leahy. Also Senator Durbin who many of you may have seen the exchange between Senator Durbin and some of his Republican colleagues over the spearless charge that for some reason the questioning of the views and positions of Mr. Pryor arose to the level of questioning religious beliefs and in some leap of logic, therefore leading to a charge of being anti-Catholic. This debate was escalated a few days ago when some of the closest advisors to the current President and other Republican leaders raised money to run an ad, which appeared in major newspapers with the sign posted on the closed door of a courthouse saying that no Catholics need apply. This is an extremely dangerous ground that some of my colleagues of the other side of the aisle seem intent upon following. And one only has to read the comments and exchanges among them, Chairman Hatch, Senator Sessions, and Senator Santorum to get a flavor of what I am referring to. I think this is a critically important issue and I hope that many will speak out about it. So far there has been no repudiation of those ads by any of my Republican colleagues by the administration or by, maybe someone has said something I haven't found in any kind of research, or by anyone in the Republican Party. As my colleague who serves on the judiciary committee, Senator Feinstein from California asked on the floor of the Senate. She called on the committee to disavow those ads. She called on the administration to disavow those ads. And she very poignantly goes on to say that there was a time in our history when the phrase 蹝atholics need not apply?was used to keep countless qualified Americans from pursuing the American dream. The same can be said for 醨o Jews need apply?and 醨o Irish need apply.?And much like Justice Sandra Day O'Connor when she first looked for her first job and I first looked for my first job really, 鎛omen need not apply.?These were dark times in American history and many of us in this body remember those times, that every one of us should be absolutely committed to preventing those days from ever occurring. And if you look at Senator Durbin's eloquent speech as a Catholic, raising the issues that this unfortunate politicization of religion has thrust into the Senate and into the public forum, he makes it very clear that he and I and others have not been raised to believe or in any way imagining that we would reach a point where a nominee for the federal bench appearing before the judiciary committee would be asked his religion as a way to create a wedge issue, as a way to provoke an advertising campaign, as a way to be divisive politically. Senator Durbin says that 鄾r. President?in referring to the presiding officer in the Senate 鎲or those of us who have been given this great honor to serve in the Senate, there is a moment where we are asked to take the oath of office. In taking that oath of office we swear to uphold one document. We may put our hand on our bible, if that is how we believe. But we swear to uphold the Constitution of the United States of America. We are not asked our religion, nor our belief in our religion. We are only asked that we take an oath to uphold the Constitution. And we take that oath very seriously.?Senator Durbin goes on to talk about the whole religious test in the Constitution, about his own faith, and about his opposition to Attorney General Pryor, and he makes this point because of course once again this debate is being driven by the incredibly profound religious personal differences over the question of choice. And therefore despite many of the other problems in Mr. Pryor's record concerning his advocacy against federal laws for AIDS discrimination or disability and many other things. He is somehow being turned into a victim because it is claimed that his religion dictates his position on this issue. Of course Senator Durbin, a lifelong Catholic goes onto say 轋 guess I was raised in a little different branch of the Catholic Church. Maybe a branch that believes there ought to be a little more humility in religious belief. What I believe is this. Within the Catholic Church there are many differences of opinion. Even within the church members who serve in this Congress. And there are many of us who believe that it is about a lot of different positions on issues. It is about for example the death penalty. Where the church has been clear on its position and yet that is not an issue that is being used for political purposes.?I raise this and commend to you the entire debate because I think it as much as anything points out the urgency of the task before us and it is also clear that the Federalist Society has had quite a head start and Senator Durbin points out that as a very active member of the Federalist Society, Mr. Pryor believes that it is the job of a federal judge to carry out the political agenda of the President. He was very actively avowed in Bush v. Gore, wrote amicus brief for example. And he has been very outspoken that the only hope for federalism as he defines it is the agenda of this President. He has said frequently that he agrees with the following statement from the Federalist Society Mission, 鄻aw schools and the legal profession are currently strongly dominated by a form of orthodox, liberal ideology which advocate a centralized and uniform society.?Well, I have to say that looking out at this crowd that certainly doesn't seem to be the case but that is their view and that is their mission. So part of the challenge for those of us in the Senate is to stand together as best we can against the nominees of this President whose agenda is to take over the federal judiciary and turn the clock back. And part of the mission I hope of you individually and through this organization is to not only come up with the argumentation, the idea of creation, the advocacy that will inspire, not just lawyers and law students, and judges, and those related to the legal profession, but Americans to realize that there truly is a profound struggle occurring over the future direction of our country. It is occurring on many different levels, in many different venues, but one of the hardest thought of all of these struggles is over the future of the judiciary. So I thank you for recognizing that if we care about the continuing journey that America's been on, our effort to create conditions where people have the tools of opportunity and the supporting legal and economic atmosphere in which to pursue their own degree, that we recognize in this complex, global marketplace that it is very hard to understand how individual states can make the decisions that will govern the lives of citizens versus being an American citizen in a state in our future together then I think we can make a very strong stand and I commend you for understanding that and for being here and I look forward to working with you over the years to come. Thank you very much.

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