Skip to comments.Senate Coverage -- (April '05)
Posted on 04/04/2005 8:26:56 AM PDT by OXENinFLA
Since "Free Republic is an online gathering place for independent, grass-roots conservatism on the web. We're working to roll back decades of governmental largesse, to root out political fraud and corruption, and to champion causes which further conservatism in America.", I and others think it's a good idea to centralize what the goes on in the Senate (or House).
So if you see something happening on the Senate/House floor and you don't want to start a new thread to ask if anyone else just heard what you heard, you can leave a short note on who said what and about what and I'll try and find it the next day in THE RECORD. Or if you see a thread that pertains to the Senate, House, or pretty much any GOV'T agency please link your thread here.
If you have any suggestions for this thread please feel free to let me know.
Here's a few helpful links.
C-SPAN what a great thing. Where you can watch or listen live to most Government happenings.
C-SPAN 1 carries the HOUSE.
C-SPAN 2 carries the SENATE.
C-SPAN 3 (most places web only) carries a variety of committee meetings live or other past programming.
OR FEDNET has online feed also.
A great thing about our Government is they make it really easy for the public to research what the Politicians are doing and saying (on the floor anyway).
THOMAS where you can see a RECORD of what Congress is doing each day. You can also search/read a verbatim text of what each Congressmen/women or Senator has said on the floor or submitted 'for the record.' [This is where the real juicy stuff can be found.]
Also found at Thomas are Monthly Calendars for the Senate Majority and Senate Minority
And Monthly Calendars for the House Majority and Roll Call Votes can be found here.
The Founders' Constitution
THE WHITE HOUSE
THE WAR DEPARTMENT (aka The Dept. of Defense)
LIVE DoD Briefings
NEWSEUM: TODAY'S FRONT PAGES
2:00 p.m.: Convene and begin a period of morning business.
Good morning, OXEN. I wonder what mischief they will be up to today.
It just got over.....
Thanks for the ping
Love the picture---poifect!!
I saw some of the press conference re: the judicial nominees. Part was not shown because of the Pres. presser.
I have a feeling the dems are gonna be coming back NASTY from this Easter break---
Like one of the speakers at the presser said, the dems are using a 2400 sq. ft. room, 84 employees, tv commercials to try to fight the Constitution!
I just saw the thread about the judicial nominee press conference where kristinn said he was gonna attend to advertise for the March for Justice---
I wouldn't know what kristinn looks like so I don't know if he was there, do you?
Five member delegation going to Rome on Wednesday--Bush, Laura and they will announce later who else will be in the delegation...
Do you know if the CMH ceremony will be broadcast..?
Sorry..The Medal of Honor is supposed to be presented today..
I saw the ceremony---it was a real tearjerker!!!!
Glad you posted that it was going to be on, thanks.
Uh, oh---first had to listen to Kennedy bloviate about his "good friend" the Pope---
Now, Ron Wyden from Oregon is on floor WARNING the Reps NOT to try to write anymore laws regarding people like Terri Schiavo---
He is for CHOICE doncha know---choice to kill babies, and now choice to kill the disabled...and dangit Congress better not get in the way!!!
I just knew the dems would come out swinging on this subject! It is is just gonna fuel the arguements here on FR, I am afraid...sigh
John Cornyn up now talking about that idiot Ruth Ginsbergs comment this weekend about using international mores and laws to "help" the Supremes reach decisions for American laws....
It is outrageous that she does it---but more outrageous that she is proud of it and even gives speeches promoting the use of foreign mores and laws instead of our own Constitution....jeez!
OOPS---meant Yippee, not Yoppee--
oh well, this speech by John Cornyn should be on national TV on Prime Time for ALL Americans to hear---
Unfortunately, most American won't know what the judges are doing and why some of their decisions are so wacky!!
Would you happen to know when the Senate will be debating the adding of AgJobs to the Defense Appropriation Bill?
I'm not for sure but I think there's a judge coming up soon.
Thanks. The Agjobs/immigration reform issue should be a hot debate.
I saw him. I'll post his comments tomorrow.
Did the AGJobs bill pass the House yet? Does the Senate debate it at the same time as the House, or wait to see if the House passes it?
I saw a thread regarding this bill, here on FR this afternoon---did you see it?
I'm glad you are going to post Cornyn's Senate speech--it was very good---
ping to check for coryn's speech later
9:45 a.m (C-span says 9:30).: Convene and begin a period of morning business.
Reauthorizing the Patriot Act Senate Judiciary Committee Chairman Arlen Specter (R-PA) convenes a hearing to review reauthorization of the Patriot Act of 2001. Testifying are Attorney General Alberto Gonzales and FBI Director Robert Mueller. Certain provisions of the act will expire at the end of 2005.
TUES., 9:30AM ET, C-SPAN
THE PRESIDENT: Good afternoon and welcome to the White House. Today is a special occasion: We are here to pay tribute to a soldier whose service illustrates the highest ideals of leadership and love of our country.
Sergeant First Class Paul Ray Smith, of Florida, gave his life for these ideals in a deadly battle outside Baghdad. It is my great privilege to recognize his extraordinary sacrifice by awarding Sergeant Smith the Medal of Honor.
I appreciate Secretary Don Rumsfeld joining us today; Secretary Jim Nicholson, of the Department of Veterans Affairs; Senator Carl Levin, Senator Bill Nelson, Senator Mel Martinez, Senator Johnny Isakson and Congressman Ike Skelton. Thank you all for joining us.
I appreciate Secretary Francis Harvey, Secretary of the Army; General Dick Myers, Chairman of the Joint Chiefs of Staff; General Pete Pace, Vice Chairman; General Pete Schoomaker, Chief of the Army.
I want to thank the Medal of Honor recipients who have joined us today: John Baker, Barney Barnum, Bernie Fisher, Al Rascon and Brian Thacker. Honored you all are here.
I appreciate the family members who have joined us today. Thank you all for coming: Birgit Smith, his wife; Jessica Smith; David Smith; Janice Pvirre, the mom; Donald Pvirre, stepfather, and all the other family members who have joined us. Welcome.
I appreciate Chaplain David Hicks, for his invocation. I want to thank Lieutenant Colonel Tom Smith, for joining us, who was Paul Smith's commander. I particularly want to welcome soldiers from the 3rd Infantry Division, Paul's unit in Iraq.
The Medal of Honor is the highest award for bravery a President can bestow. It is given for gallantry above and beyond the call of duty in the face of enemy attack. Since World War II, more than half of those have been awarded this medal gave their lives in the action that earned it. Sergeant Paul Smith belongs to this select group.
The story of Paul Smith is a story of a boy transformed into a man and a leader. His friends and family will tell you that he joined the Army in 1989, after finishing high school. When he joined the Army, he was a typical young American. He liked sports, he liked fast cars, and he liked to stay out late with his friends -- pursuits that occasionally earned him what the Army calls "extra duty." (Laughter.) Scrubbing floors.
Two things would change Paul's life and lead him to the selfless heroism we honor today. The first would come when he was stationed in Germany and fell for a woman named Birgit Bacher. It turns out that Paul had a romantic streak in him: On the first night he met her, Paul appeared outside Birgit's window singing "You've Lost That Loving Feeling." (Laughter.) In 1992, the two married, and soon, a young soldier became a devoted family man who played T-ball with his son and taught his daughter how to change the oil in his Jeep Cherokee.
Second great change in Paul's life would come when he shipped off to Saudi Arabia to fight in the first Gulf War. There the young combat engineer learned that his training had a purpose and could save lives on the battlefield. Paul returned from that war determined that other soldiers would benefit from the lessons he had learned.
Paul earned his sergeant's stripes and became known as a stickler for detail. Sergeant Smith's seriousness wasn't always appreciated by the greener troops under his direction. Those greener troops oftentimes found themselves to do tasks over and over again, until they got it right. Specialist Michael Seaman, who is with us today, says, "He was hard in training because he knew we had to be hard in battle." Specialist Seaman will also tell you that he and others are alive today because of Sergeant Smith's discipline.
That discipline would be put to the task in a small courtyard less than a mile from the Baghdad airport. Sergeant Smith was leading about three dozen men who were using a courtyard next to a watchtower to build a temporary jail for captured enemy prisoners. As they were cleaning the courtyard, they were surprised by about a hundred of Saddam Hussein's Republican Guard.
With complete disregard for his own life and under constant enemy fire, Sergeant Smith rallied his men and led a counterattack. Seeing that his wounded men were in danger of being overrun, and that enemy fire from the watchtower had pinned them down, Sergeant Smith manned a 50-caliber machine gun atop a damaged armor vehicle. From a completely exposed position, he killed as many as 50 enemy soldiers as he protected his men.
Sergeant Smith's leadership saved the men in the courtyard, and he prevented an enemy attack on the aid station just up the road. Sergeant Smith continued to fire and took a -- until he took a fatal round to the head. His actions in that courtyard saved the lives of more than 100 American soldiers.
Scripture tells us, as the General said, that a man has no greater love than to lay down his life for his friends. And that is exactly the responsibility Paul Smith believed the Sergeant stripes on his sleeve had given him. In a letter he wrote to his parents but never mailed, he said that he was prepared to "give all that I am to ensure that all my boys make it home."
On this day two years ago, Sergeant Smith gave his all for his men. Five days later, Baghdad fell, and the Iraqi people were liberated. And today, we bestow upon Sergeant Smith the first Medal of Honor in the war on terror. He's also the first to be awarded this new Medal of Honor flag, authorized by the United States Congress. We count ourselves blessed to have soldiers like Sergeant Smith, who put their lives on the line to advance the cause of freedom and protect the American people.
Like every one of the men and women in uniform who have served in Operation Iraqi Freedom, Sergeant Paul Smith was a volunteer. We thank his family for the father, husband and son and brother who can never be replaced. We recall with appreciation the fellow soldiers whose lives he saved, and the many more he inspired. And we express our gratitude for a new generation of Americans, every bit as selfless and dedicated to liberty as any that has gone on before -- a dedication exemplified by the sacrifice and valor of Sergeant First Class Paul Ray Smith.
And now if his family would join me, please. Lieutenant Commander, please read the citation.
(The citation is read and the medal is presented.) (Applause.)
Mr. CORNYN. Mr. President, I wanted to talk a little bit about our courts, and specifically our Federal courts, and even more specifically the United States Supreme Court.
Before I start, let me just say I have the greatest respect for our judiciary, the men and women who wear black robes--whether it is on a municipal court or a county court or a district court like I served on in San Antonio, Bexar County, TX, for 6 years, or those who work on appellate courts, whether State or Federal, like I did on the Texas Supreme Court for 7 years.
For 13 years of my professional life, I have worn a black robe, judging cases, first presiding over the jury trials, and coming to have a great deal of respect not just for those judges but for men and women who serve on juries and decide hard cases, cases which, perhaps, they would prefer not have to sit in judgment of, some involving even the death penalty.
I don't want anyone to misunderstood what I say as being a blanket criticism of either the judiciary or the U.S. Supreme Court, in particular. From my own experience, judges, although they have important jobs to do, are no different than you and I. They are mere mortals, subject to the same flashes of mediocrity, sometimes making mistakes, and sometimes displaying flights of brilliance. These are not, as some people have suggested, high priests able to discern great truths that you and I are unable to figure out. They are generally very intelligent, with outstanding educational pedigrees, but no one has agreed that judges, particularly Federal judges, can be or should be a law unto themselves.
Federal judges are appointed subject to advice and consent provisions of the Constitution for a lifetime. They do not run for election. They do not have to raise money as do other politicians. I know those who do envy them that. But the idea is they are supposed to use that independence in order to be impartial umpires of the law--it is called balls and strikes--and they should use that independence that has been given to them in order to resist politics, in order to resist those who would suggest that in order to be popular you must subscribe to a particular way of thinking or a particular social or political or ideological agenda.
Given that framework the Founding Fathers agreed was so important and that I know we all agree is important today to preserve that independence so as to preserve that judicial function, it causes a lot of people, including me, great distress to see judges use the authority they have been given to make raw political or ideological decisions. No one, including those judges, including the judges on the U.S. Supreme Court, should be surprised if one of us stands up and objects.
I make clear I object to some of the decisionmaking process occurring at the U.S. Supreme Court today and now. So far as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it has led to increasing divisiveness and bitterness of our confirmation fights that is a very current problem this body faces. It has generated a lack of respect for judges generally. Why should people respect a judge for making a policy decision born out of an ideological conviction any more than they would respect or deny
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themselves the opportunity to disagree if that decision were made by an elected representative? The difference is they can throw the rascal out and we are sometimes perceived as the rascal if they do not like the decisions made, but they cannot vote against a judge, because judges are not elected. They serve for a lifetime on the Federal bench.
The increasing politicization of the judicial decisionmaking process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy.
Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country--certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder
whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share.
We all are students of history in this Senate, we all have been elected to other bodies and other offices, and we are all familiar with the founding documents, the Declaration of Independence, the Constitution itself. We are familiar with the Federalist Papers that were written in an effort to get the Constitution ratified in New York State. Alexander Hamilton, apropos of what I will talk about, authored a series of essays in the Federalist Papers that opine that the judicial branch would be what he called the ``least dangerous branch of government.'' He pointed out that the judiciary lacked the power of the executive branch, the White House, for example, in the Federal Government and the political passions of the legislature. In other words, the Congress. Its sole purpose--that is, the Federal judiciary's sole purpose--was to objectively interpret and apply the laws of the land and in such a role its job would be limited.
Let me explain perhaps in greater detail why I take my colleagues' time to criticize some of the decisionmaking being made by some Federal courts in some cases. This is not a blanket condemnation. I hope I have made it clear I respect the men and women who wear the robe, but having been a judge myself I can state that part of the job of a judge is to criticize the reasoning and the justification for a particular judgment. I certainly did that daily as a state supreme court justice. And I might add that people felt free to criticize my decisions, my reasoning and justification for the judgments I would render. That is part of the give and take that goes into this. I make clear my respect generally for the Federal judiciary, including the U.S. Supreme Court.
I am troubled when I read decisions such as Roper v. Simmons. This is a recent decision from March 1, 2005. Let me state what that case was about. This was a case involving Christopher Simmons. Christopher Simmons was seven months shy of his 18th birthday when he murdered Shirley Crook. This is a murder he planned to commit. Before committing the crime, this 17-year-old who was 7 months shy of his 18th birthday, encouraged his friends to join him, assuring them that they could ``get away with it,'' because they were minors. Christopher Simmons and his cohorts broke into the home of an innocent woman, bound her with duct tape and electrical wire, and then threw her off a bridge, alive and conscious, resulting in her subsequent death.
Those facts led a jury in Missouri, using the law in Missouri that the people of Missouri had chosen for themselves through their elected representatives, to convict him of capital murder and to sentence him to death.
Well, this 17-year-old boy, or young man I guess is what I would call him, Christopher Simmons, challenged that jury verdict and that conviction all the way through the State courts of Missouri and all the way to the U.S. Supreme Court. And the United States Supreme Court, on March 1, 2005, held that Christopher Simmons or any other person in the United States of America who is under the age of 18 who commits such a heinous and premeditated and calculated murder cannot be given the death penalty because it violates the U.S. Constitution.
In so holding, the U.S. Supreme Court said: We are no longer going to leave this in the hands of jurors. We do not trust jurors. We are no longer going to leave this up to the elected representatives of the people of the respective States, even though 20 States, including Missouri, have the possibility at least of the death penalty being assessed in the most aggravated types of cases, involving the most heinous crimes, against someone who is not yet 18.
This is how the Court decided to do that. First, it might be of interest to my colleagues that 15 years earlier the same U.S. Supreme Court, sitting in Washington, across the street from this Capitol where we are standing today, held just the opposite. Fifteen years ago, the U.S. Supreme Court held that under appropriate circumstances, given the proper safeguards, in the worst cases involving the most depraved and premeditated conduct, a jury could constitutionally convict someone of capital murder and sentence them to the death penalty. But 15 years later, on March 1, they said what was constitutional the day before was no longer constitutional, wiping 20 States' laws off the books and reversing this death penalty conviction for Christopher Simmons.
What I want to focus on now is the reasoning that Justice Anthony Kennedy, writing for the U.S. Supreme Court, in a 5-to-4 decision, used to reach that conclusion.
First, Justice Kennedy adopted a test for determining whether this death penalty conviction was constitutional. This ought to give you some indication of the problems we have with the Supreme Court as a policymaker with no fixed standards or objective standards by which to determine its decisions to make its judgments. The Court embraced a test that it had adopted earlier referring to the ``evolving standards of decency that mark the progress of a maturing society.'' Let me repeat that. The test they used was the ``evolving standards of decency that mark the progress of a maturing society.''
I would think any person of reasonable intelligence, listening to what I am saying, would say: What was that? How do you determine those ``evolving standards''? And if they are one way on one day, how do they evolve to be something different the next day? And what is a ``maturing society''? How do we determine whether society has matured? I think people would be justified in asking: Isn't that fancy window dressing for a preordained conclusion? I will let them decide.
Well, it does not get much better because then the Court, in order to determine whether the facts met that standard, such as that this death penalty could not stand, or these laws in 20 States cannot stand, looked to what they called an ``emerging consensus.'' Well, any student of high school civics knows we have a Federal system, and the national Government does not dictate to the State governments all aspects of criminal law. In fact, most criminal law is decided in State courts in the first place.
Nevertheless, the Supreme Court of the United States, in a 5-to-4 decision, looked for an ``emerging consensus'' and in the process wiped 20 States' laws off the books. I will not go into the details of how they found a consensus, but suffice it to say it ought to be that in a nation comprised of 50 separate sovereign State governments, where 20 States disagree with the Court on its decision that wipes those 20 States' courts laws off the books, it can hardly be called a consensus, if language is to have any meaning.
Secondly, the Court said: We will also look to our own decisions, our own judgment over the propriety of this law. In other words, they are going to decide because they can, because basically their decisions are not appealable, and there is nowhere else to go if they decide this law is unconstitutional. The American people, the people of Missouri, the people who support, under limited circumstances, under appropriate checks and balances, the death penalty for people who commit heinous crimes under the age of 18 are simply out of luck; this is the end of the line.
Well, finally--and this is the part I want to conclude on and speak on for a
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few minutes--the Court demonstrated a disconcerting tendency to rely on the laws of foreign governments and even treaties in the application and enforcement of U.S. law. This is a trend that did not start with the Roper case, but I did want to mention it in that connection.
But if the U.S. Supreme Court is not going to look to the laws of the United States, including the fundamental law of the United States, which is the Constitution, but interpreting what is and is not constitutional under the U.S. Constitution by looking at what foreign governments and foreign laws have to say about that same issue, I fear that bit by bit and case by case the American people are slowly losing control over the meaning of our laws and the Constitution itself. If this trend continues, foreign governments may have a say in what our laws and our Constitution mean and what our policies in America should be.
Let me digress a second to say this is as current as the daily news. As a matter of fact, I saw in the New York Times on April 2 an article concerning Justice Ginsburg, a member of that five-member majority in the Roper case. The headline is: ``Justice Ginsburg Backs Value of Foreign Law.'' Reading from this story, written by Anne Kornblut, it says:
In her speech, Justice Ginsburg criticized the resolutions in Congress and the spirit in which they were written.
She is referring to a resolution I have filed, and I sent out a ``dear colleague'' today expressing concerns about this issue. But she said:
Although I doubt the resolutions will pass this Congress--
I don't know where she gets her information. I think there is a lot of positive sentiment in favor of what the resolution says, and I will talk about that in a minute.
Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support.
I am a little surprised that a sitting U.S. Supreme Court Justice would engage in a debate about a current matter, which has yet to be decided by the Senate, which is a resolution expressing concern about the use of foreign laws and treaties to interpret what the U.S. Constitution should mean. I am a little surprised by it.
In a series of cases over the past few years our courts have begun to tell us that our criminal laws and our criminal policies are informed not just by our Constitution and by the policy preferences and legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts. I understand it is hard to believe, and most people listening to what I am saying are asking themselves: Could this be true? Is it possible? I know it is hard to believe, but in a series of recent cases, including the Roper case, the U.S. Supreme Court has actually rejected its own prior decisions in part because a foreign government or court has expressed disagreement with the conclusion they had reached.
Until recently the U.S. Supreme Court had long held that under appropriate safeguards and procedures, the death penalty may be imposed by the States regardless of the IQ of the perpetrator. The Court had traditionally left this issue untouched as a matter for the American people and each of their States to decide, as the Court said in a case called Penry V. Lynaugh in 1989. Yet because some foreign governments had frowned upon that ruling, the U.S. has now seen fit to take that issue away from the American people entirely. In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the Commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder because of the testimony that the defendant was mildly mentally retarded. The reason given for this reversal of the Court's position that it had taken in 1989 to 2002? In part it was because the Court was concerned about ``the world community'' and the views of the European Union.
Take another example. The U.S. Supreme Court had long held that the American people in each of the States have the discretion to decide what kinds of conduct that have long been considered immoral under longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick in 1986, the Court held that it is up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again because foreign governments have frowned upon that ruling, the U.S. Supreme Court saw fit in 2003, in Lawrence v. Texas, to hold that no State's criminal justice system or its criminal justice laws could be written in a way to reflect the moral convictions and judgments of their people.
The reason given for this reversal from 1986 to 2002? This time the Court explained that it was concerned about the European Court of Human Rights and the European Convention on Human Rights.
I have already mentioned the case of Roper v. Simmons. But most recently, on March 28, the U.S. Supreme Court heard oral arguments in a case that will consider whether foreign nationals duly convicted of the most heinous crimes will nevertheless be entitled to a new trial for reasons that those individuals did not even bother to bring up during their trial. As in the previous examples, the Supreme Court has already answered this issue but decided to revisit it once again. In 1998, in Breard v. Green, the Court made clear that criminal defendants, like all parties in lawsuits, may not sit on their rights and must bring them up at the time the case is going on or be prohibited from raising those issues later on, perhaps even years later. That is a basic principle of our legal system. In this case, the Court has decided to revisit whether an accused who happens to be a foreign national, subject to the Vienna Convention on Consular Relations, should be treated differently from any other litigant in our civil litigation systems and in State and Federal courts or in the Federal system reviewing State criminal justice provisions.
Even this basic principle of American law may soon be reversed. Many legal experts predict that in the upcoming case of Medilline v. Dretke, the Court may overturn itself again for no other reason than that the International Court of Justice happens to disagree with our longstanding laws and legal principles. This particular case involves the State of Texas. I have filed an amicus brief, a friend of the court brief, in that decision, asking the Court to allow the people of Texas to determine their own criminal laws and policies consistent with the U.S. States Constitution and not subject to the veto of the Vienna Convention on Consular Rights or the decision of some international court.
There is a serious risk, however, that the Court will ignore Texas law, will ignore U.S. law, will reverse itself, and decide in effect that the decisions of the U.S. Supreme Court can be overruled by the International Court of Justice.
I won't dwell on this any longer, but suffice it to say
there are other examples and other decisions where we see Supreme Court Justices citing legal opinions from foreign courts across the globe as part of the justification for their decisions interpreting the U.S. Constitution. These decisions, these legal opinions from foreign courts range from countries such as India, Jamaica, Zimbabwe, and the list goes on and on.
I am concerned about this trend. Step by step, with each case where this occurs, the American people may be losing their ability to determine what their laws should be, losing control in part due to the opinions of foreign courts and foreign governments. If this happens to criminal law, it can also spread to other areas of our Government and our sovereignty. How about our economic policy, foreign policy? How about our decisions about our own security?
Most Americans would be disturbed if we gave foreign governments the power to tell us what our Constitution means. Our Founding Fathers fought the Revolutionary War precisely to stop foreign governments--in this case, Great Britain--from telling us what our laws should be or what the rules should be by which we would be governed. In fact, ending foreign control over American law was one of the very reasons given for our War of Independence.
The Declaration of Independence itself specifically complains that the American Revolution was justified in
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part because King George ``has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws.''
After a long and bloody revolution, we earned the right at last to be free of such foreign control. Rather, it was we the people of the United States who then ordained and established a Constitution of the United States and our predecessors, our forefathers, specifically included a mechanism by which we the people of the United States could change it by amendment, if necessary.
Of course, every judge who serves on a Federal court swears to an oath to ``faithfully and impartially discharge and perform all the duties incumbent upon me ..... under the Constitution and laws of the United States, so help me God.''
As you can tell, I am concerned about this trend. I am concerned that this trend may reflect a growing distrust amongst legal elites--not only a distrust of our constitutional democracy, but a distrust of the American people and America itself.
As every high school civics student knows, the job of a judge is pretty straightforward. Judges are supposed to follow the law, not rewrite it. Judges are supposed to enforce and apply political decisions that are made in Congress and that are signed into law by the President of the United States. Judges are not supposed to make those decisions or substitute their own judgments or those political judgments hashed out in the legislative process in this body and this Capitol. The job of a judge is to read and obey the words contained in our laws and in our judicial precedents--not the laws and precedents of foreign governments, which have no authority over our Nation or the American people.
I am concerned that some judges who simply don't like our laws--and they don't like the decisions made by Americans through their elected representatives here about what those laws should be--are using this as another way to justify their decision to overreach. So it appears they would rather rewrite the law from the bench. What is especially disconcerting is that some judges today may be departing so far from American law, from American principles, and from American traditions that the only way they can justify their rulings is to cite the law of foreign countries, foreign governments, and foreign cultures, because there is nothing left for them to cite for support in this country.
Citing foreign law in order to overrule U.S. policy offends our democracy because foreign lawmaking is obviously in no way accountable to the American people. Here again--and I started out by saying I am not condemning all Federal judges; I have great respect for the Federal judiciary--I am not condemning international law. Obviously, there is a way by which international law can apply to the United States, and that is through the treaty process, which is, of course, subject to ratification by the U.S. Congress.
There is an important role for international law in our system, but it is a role that belongs to the American people through the political branches--the Congress and the President--to decide what that role should be and indeed what that law should be; it is not a role given to our courts. Article I of the U.S. Constitution gives the Congress, not the courts, the authority to enact laws punishing ``Offenses against the Law of Nations,'' and article II of the Constitution gives the President the power to ratify treaties, subject to the advice and consent and the approval of two-thirds of the Senate. Yet our courts appear to be, in some instances, overruling U.S. law by citing foreign law decisions in which the U.S. Congress had no role and citing treaties that the President and the U.S. Senate have refused to approve.
To those who might say there is nothing wrong with simply trying to bring U.S. laws into consistency with other nations, I say this: This is not a good faith attempt to bring U.S. law into global harmony. I fear that, in some instances, it is simply an effort to further a political or ideological agenda, because the record suggests that this sudden interest in foreign law is more ideological than legal; it seems selective, not principled.
U.S. courts are following foreign law, it seems, inconsistently--only when needed to achieve a particular outcome that a judge or justice happens to desire but that is flatly inconsistent with U.S. law and precedent. Many countries, for example, have no exclusionary rule to suppress evidence that is otherwise useful and necessary in a criminal case. Yet our courts have not abandoned the exclusionary rule in the United States, relying upon the greater wisdom and insight of foreign courts and foreign nations. I might add that very few countries provide abortion on demand. Yet our courts have not abandoned our Nation's constitutional jurisprudence on that subject. Four Justices of the Supreme Court believe that school choice programs that benefit poor urban communities are unconstitutional if parochial schools are eligible, even though other countries directly fund religious schools.
Even more disconcerting than the distrust of our constitutional democracy is the distrust of America itself. I would hope that no American--and certainly no judge--would ever believe that the citizens of foreign countries are always right and that America is always wrong. Yet I worry that some judges become more and more interested in impressing their peers in foreign judiciaries and foreign governments and less interested in simply following the U.S. Constitution and American laws. At least one U.S. Supreme Court Justice mentioned publicly--and Justice Ginsburg's
comments were reported on April 2 in the New York Times. A Justice has stated that following foreign rulings rather than U.S. rulings ``may create that all important good impression,'' and therefore, ``over time, we will rely increasingly ..... on international and foreign courts in examining domestic issues.''
Well, let me conclude by saying I find disturbing this attitude and these expressions of support for foreign laws and treaties that we have not ratified, particularly when they are used to interpret what the U.S. Constitution means. The brave men and women of our Armed Forces are putting their lives on the line in order to champion freedom and democracy, not just for the American people but for people all around the world. America today is the world's leading champion of freedom and democracy. I raise this issue, and I have filed a resolution for the consideration of my colleagues on this issue. I speak about it today at some length because I believe this is an important matter for the American people to know about and to have a chance to speak out on.
I believe the American people--certainly the people in Texas--do not want their courts to make political decisions. They want their courts to follow and apply the law as written. I believe the American people do not want their courts to follow the precedents of foreign courts. They want their courts to follow U.S. laws and U.S. precedents. The American people do not want their laws controlled by foreign governments. They want their laws controlled by the American Government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts.
So I have submitted a resolution to give this body the opportunity to state for the record that this trend in our courts is wrong and that American law should never be reversed or rejected simply because a foreign government or a foreign court may disagree with it. This resolution is nearly identical to one that has been introduced by my colleague in the House, Congressman TOM FEENEY. I applaud his leadership and efforts in this area, and I hope both the House and Senate will come together and follow the footsteps of our Founding Fathers, to once again defend our rights as Americans to dictate the policies of our Government--informed but never dictated by the preferences of any foreign government or tribunal.
Mr. President, I yield the floor.
Thanks for posting this...Cornyn would make a superb SJC chair...
Dorgan up talking about the WMD report.....
1. Has the Senate ever considered electronic voting?.....if they didn't have all those long votes..wait, I withdraw that...then they'd have MORE time to bloviate..
2. What's the story behind the puny little gavel the presiding officer uses..unlike the "REAL MAN's" gavel the HOuse uses..?
I've wondered the same thing....
Dorgan has apparantly just discovered waste, fraud and abuse in government contracting.
John Cornyn is an upcoming star in the GOP. I have watched him here in Texas for several years. I agree.. he would be excellent SJC Chair.
"The original ivory gavel is one of the most precious articles in the Senate's
collection. According to tradition, Vice President John Adams (our first Vice
President and therefore our first President of the Senate) used this gavel to
call the Senate to order in New York in the Spring of 1789. Although we cannot
document that, we know for certain the gavel was used as early as 1831. In the
late 1940s the old gavel began to wear out, so silver tips were added to each
end to strengthen and preserve it. In 1954, as Vice President Richard Nixon
presided over a heated discussion about atomic energy, the precious gavel fell
apart. Senate officials wanted to recreate the original as exactly as
possible. When no ivory of sufficient size could be found commercially, India,
through its embassy, provided the ivory and had the new gavel hand-carved in
exactly the same dimensions as the new one. The new gavel began service on
November 17, 1954, and is still in use today. At the end of each long day of
service, the gavel is placed in a box beside the mended original gavel."
Thanks..that's fascinating..wonder why Adams used such a small one originally..BTW..whenever the current one cracks..which may well happen during the upcoming embroglio about judges..it won't be PC to use ivory again..
Well isn't that interesting, thanks
I just received a news alert that Peter Jennings has been diagnosed with lung cancer.