Senate Proceeding 11-17-09 on Nov 17th, 2009 :: 1:07:00 to 1:35:05
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1:06:57 to 1:07:17( Edit History Discussion )

Jeff Sessions: opinion i ask unanimous consent that the time for any quorum calls be charged equally to both sides. the presiding officer: is there objection? without objection, so ordered. mr. bayh: i yield the flo. mr. sessions: the presiding officer: the senator from alabama. mr. sessions: i thank senator bayh for his comments and his support for his friend and the nominee that's under

1:07:00 to 1:35:05( Edit History Discussion )
Speech By: Jeff Sessions

1:07:18 to 1:07:39( Edit History Discussion )

Jeff Sessions: consideration today. he is an excellent senatorho continues to strive for fairness and good policy in the senate, and certainly no one likes to oppose a nominee for the federal bench. it is just not a very pleasant thing to do. and having seen that process

1:07:40 to 1:08:00( Edit History Discussion )

Jeff Sessions: from both sides, i'll say i particularly don't relish the thought. but judges are seeking lifetime appointments to the federal bench. they would hold their office for life, without the ability of the

1:08:01 to 1:08:22( Edit History Discussion )

Jeff Sessions: public to take steps if conduct it in a way that's not appropriate. the american people may vote us out of office, and time to time. and they can vote their governors out and others, but federal judges are not subject to that. therefore, i think it is critically important that before

1:08:23 to 1:08:46( Edit History Discussion )

Jeff Sessions: we bestow that lifetime appointment, that power to define the meaning of words in our laws and in our constitution, that we be certain that the nominee is a person who is committed, as the oath said, to constitution and laws, and not above them.

1:08:47 to 1:09:07( Edit History Discussion )

Jeff Sessions: and so this nominee has some problems. unfortunately, it's not totally an isolated matter. there is, indeed, a philosophy afoot among many judges in law schools that has led to, i think, an abuse of office by certain judges.

1:09:08 to 1:09:30( Edit History Discussion )

Jeff Sessions: in recent years they've developed an idea that the constitution is not a changeless contract with the american people, but a living document, they say. in other words, a instrument that they -- they -- are free to massage so that it

1:09:31 to 1:09:51( Edit History Discussion )

Jeff Sessions: is made to like it to read or as they wish it had been written. rather than doing their duty, which is to follow the document as it was in fact written. so, this, i believe, deeply disrespects the constitution.

1:09:52 to 1:10:16( Edit History Discussion )

Jeff Sessions: it weakens the constitution. because if this point by this judge today, what judge tomorrow at another point in the document with a different philosophy, what would prohibit them from violating it at that point? so i think it is indeed a dangerous philosophy.

1:10:17 to 1:10:37( Edit History Discussion )

Jeff Sessions: i think it's one that judge hamilton has bought into, and that's part of his approach to law. i do think judges must be committed to their oath and to the constitution, and that they are not empowered to amend the constitution or write footnotes to it. judge hamilton has been nominated by the president for

1:10:38 to 1:10:59( Edit History Discussion )

Jeff Sessions: the u.s. court of appeals for the seventh circuit. he's not a district judge, federal district judge. and in that capacity, he's one step below the supreme court and would have considerably more power to define words of our laws and constitution than he does as a district judge.

1:11:00 to 1:11:20( Edit History Discussion )

Jeff Sessions: and during his campaign, the president promised to seek a bipartisan administration, but we've had a number of candidates, i think, that for the judiciary and efforts on matters like the health care that cause us concern.

1:11:21 to 1:11:43( Edit History Discussion )

Jeff Sessions: some time ago a number of us, really i think all the republicans -- 41 -- wrote and suggested that nominating outstanding candidates for the circuit court, some of which had been unable to be confirmedhat president bush had submitted, just as president bush renominated some of president

1:11:44 to 1:12:04( Edit History Discussion )

Jeff Sessions: clinton's nominees when he took office, would be a good first step in showing that kind of commitment to openness. but the white house never really -- never even acknowledged that letter. and in judge hamilton, his first

1:12:05 to 1:12:27( Edit History Discussion )

Jeff Sessions: judicial nominee, we, i think, have a problem, and i'll discuss some of that. according to some of the press reports, judge hamilton's nomination was intended to send a pacifying signal to the republicans in that they indicated, some of the spokesmen that, future nominees would be

1:12:28 to 1:12:48( Edit History Discussion )

Jeff Sessions: more but i'm at a loss to think that we would have someone with greater ideological commitment than judge hamilton. perhaps we'll see that in the future. i don't think we've seen that to date. i voted for most of the president's nominees, but as to two i have not supported them

1:12:49 to 1:13:09( Edit History Discussion )

Jeff Sessions: prior to this. so, to begin with, i would just note that mr. hamilton was a board member and vice president of the aclu chapter of indiana, and they take some very strong positions on constitutional questions that i think are just unjustified.

1:13:10 to 1:13:30( Edit History Discussion )

Jeff Sessions: and he signed on to that organization fully knowing what ey stood for, and he's previously worked for or been associated with certainly not a mainstream organization but a real left-wing group for sure, and

1:13:31 to 1:13:52( Edit History Discussion )

Jeff Sessions: has not investigations reports of their activities has not made us f for sure. it does appear that judge hamilton's views are outside the mainstream of president obama's other nominees, the vast

1:13:53 to 1:14:14( Edit History Discussion )

Jeff Sessions: majority of whom have openly rejected the so-called empathy standard for a judge and have stated that empathy should not play a role in a judge's consideration of case.now associate justice sotomayor rejected this notion at her

1:14:15 to 1:14:38( Edit History Discussion )

Jeff Sessions: confirmation hearings explicitly. however, instead of embracing the constitutional historic standard of jurisprudence that justice sotomayor said that she believed in, one that says that one must faithfully adhere to the rule of law as written,

1:14:39 to 1:15:03( Edit History Discussion )

Jeff Sessions: judge hamilton openly the empathy standard, which i would submit is no standard at all. it is not a legal standard. in response to a follow-up question after his hearing, judge hamilton said that empathy was -- quote -- "important in fulfilling judicial oaths." close quote.

1:15:05 to 1:15:26( Edit History Discussion )

Jeff Sessions: he further stated -- quote -- "-- and this was a question, i believe, by senator hatch. he further stated -- quote -- "a judge need to empa thinks with party -- empathize with parties in the case, crime victim and accused defendant, so that the judge can better understand how the parties came to be before

1:15:27 to 1:15:47( Edit History Discussion )

Jeff Sessions: the court and how rules affect those parties and others in similar situations." well, i disagree with that. it's a pretty significant disagreement actually. whenever a judge empathizes with a party, whenever a judge uses o. a louse that judge's personal

1:15:48 to 1:16:08( Edit History Discussion )

Jeff Sessions: -- or allows that judges's personal beliefs, vices or experiences to inform or influence a decision in favor of one party and he would t necessarily disfavor the other party. empathy directly conflicts with the judicial oath which

1:16:09 to 1:16:29( Edit History Discussion )

Jeff Sessions: judges to faithfully on the one hand impartially -- quote -- "administer justice without respect to right to the poor and the rich under the constitution and laws of the united states." well, dge hamilton has said that he quote -- "will reach different

1:16:30 to 1:16:51( Edit History Discussion )

Jeff Sessions: decisions from time to time, taking into account what happened and its affect on both parties, what are consequences." close quote.

1:16:52 to 1:17:12( Edit History Discussion )

Jeff Sessions: but this really is an affect -- outcome-determining philosophy of law, and outcomes are to be considered by the legislative branch, the policy-making branch when they pa so we pass laws, and we do our best to figure what impact they'll have and how they should

1:17:13 to 1:17:33( Edit History Discussion )

Jeff Sessions: be enforced, a lines and this and that, and it goes to a judge and then a judge now is empowered to say, wl, i know they wrote this, but i don't like the effect it's going to have on party "a" so i'm not going to enforce i don't want to be harsh or i

1:17:34 to 1:17:55( Edit History Discussion )

Jeff Sessions: don't want to be a strict constructionist. i believe that i have the ability to empathize with the parties and the today, i empathize with this party and not that peamplet you see-- --and not that party. you see, that's not law. it's just not law in the great american tradition of law. it is more akin to politics, really.

1:17:56 to 1:18:19( Edit History Discussion )

Jeff Sessions: and judges put on r they take oaths. they conduct them servings the judges i've -- they conduct themselves, the judges i've known, to send a message that they follow their do their duty, and they don't have -- they treat people fairly, without bias or

1:18:20 to 1:18:41( Edit History Discussion )

Jeff Sessions: prejudice or empathy isn't that not a form of prejudice for one party or another? so i thi these are big issues, and i think judge hamilton's position is he's a good person. i don't dispute that. but we're

1:18:42 to 1:19:03( Edit History Discussion )

Jeff Sessions: he be empowered to be an appellate judge, one step below the united states supreme court? and his view of the role of a judge troubles me. in a 2003 speech, he said "the role of a judge includes

1:19:04 to 1:19:24( Edit History Discussion )

Jeff Sessions: writing" -- and he quote -- "a series of footnotes to the constitution." close quote. and explained in statent to a question that senator hatch gave, he believes that the

1:19:25 to 1:19:46( Edit History Discussion )

Jeff Sessions: framers were able to amend the constitution. "both the process of case-by-case ajudd indication and the article 5 amendment process are constitutionally legitimate and were both, in my view, expected by the framers provided that case-by-case interpretation follows the usual

1:19:47 to 1:20:07( Edit History Discussion )

Jeff Sessions: message outs interpretation." close quote. but i think that's a pretty strong statement. he says that the process of case-by-case adjudication and article 5 amendment processes are constitutionally legitimate.

1:20:08 to 1:20:28( Edit History Discussion )

Jeff Sessions: in effect, -- and affect constitutionally legitimate ways to alter the document." that's how we amend the constitution. i'm troubled by that. that was just a few weeks ago when he submitted a written answer to questions. that's not a sound view of judging in my opinion.

1:20:29 to 1:20:51( Edit History Discussion )

Jeff Sessions: i would say it indeed essence of an activist judicial philosophy. and that philosophy has impacted a number of his rulings as a federal district court judge. his rulings show a lack of

1:20:52 to 1:21:13( Edit History Discussion )

Jeff Sessions: appreciation for the properly effected will of the people of the state -- of the state and federal government and the elective branches. in more than a few instances he's used his position to drive a political agenda, it seems clear to me. some can says we all make our best judgment

1:21:14 to 1:21:34( Edit History Discussion )

Jeff Sessions: about those matters. i think, in this case, that he has. he -- a political agenda that is guided by personal beliefs and not the rule of law. and he's been reversed quite a number of times by the seventh circuit court of appeals, the very court for which he's now

1:21:35 to 1:21:55( Edit History Discussion )

Jeff Sessions: been nominated. so i'd like to -- let's look at the heinrich v. vasra case. and i don't intend -- and it is not right to say that judge hamilt is hostile to religion. it does appear that he's hostile to the expression -- free

1:21:56 to 1:22:16( Edit History Discussion )

Jeff Sessions: expression of religion in certain circumstances, and has been reversed as a result of it. i want to be heinrich case. what happened was the judge enjoined or issued an order to the speaker of the indiana house

1:22:17 to 1:22:39( Edit History Discussion )

Jeff Sessions: of representatives telling the speaker that he cannot -- he cannot allow sectarian prayers, and ruling that the prayers being said there violate the establishment clause of the constitution because many of the prayers expressly mention jesus christ.

1:22:40 to 1:23:01( Edit History Discussion )

Jeff Sessions: yet in a post-judgment motion, judge hamilton permitted the use of allah by a muslim imam who was invited to pray at the legislature because he found there was -- quote -- "little risk" -- close quote -- that such prayers -- quote -- "would advance a particular religion or

1:23:02 to 1:23:20( Edit History Discussion )

Jeff Sessions: disparage others." close quote. i don't think that's sound legal approach. i think that's exactly what he said. people can say he didn't say that. i think that's what happened.

1:23:29 to 1:23:50( Edit History Discussion )

Jeff Sessions: and so in that case this quote -- "when government prayers are expressly and consistently sectarian -- i.e., when he express faith of a particular religion -- then the opportunity for prayers is being used to advance a particular religion contrary to the mandate

1:23:51 to 1:24:11( Edit History Discussion )

Jeff Sessions: of the establishment clause." close quote. well, i don't think that's accurate. but the law is indeed difficult in this area. but this is one of the more

1:24:12 to 1:24:33( Edit History Discussion )

Jeff Sessions: dramatic rulings i've seen in this area of the law. in addition to prohibiting such sectarian prayers, as he defined speaker of the house must advise any official who's going to open the legislature with a prayer, that a prayer must be

1:24:34 to 1:24:54( Edit History Discussion )

Jeff Sessions: nonsectarian, must not advance any one faith or disparage another, a understand must not use -- quote -- "price name or any appeal the seventh circuit initially denied the motion for a stay finding that the ruling was

1:24:55 to 1:25:15( Edit History Discussion )

Jeff Sessions: supported by some precedent. however, after full briefing and oral argument, they reversed and remanded with instructions to dismiss finding that the plaintiffs lacked standing. but i would just note for my colleagues, every day that this senate opens, we have a chaplain

1:25:16 to 1:25:37( Edit History Discussion )

Jeff Sessions: on the payroll of the united states government who walks up those steps and stands behind the speaker's chair and opens us with a prar. and periodically menti jesus's name in that process.

1:25:38 to 1:25:59( Edit History Discussion )

Jeff Sessions: so i don't know how we get to this. nobody, i assume, would challenge what we do here least haven't done so effectively yet. in gross balmberg v. indiana building authority, a judge denied a rabbi's plea to allow a menorah to be part of a

1:26:00 to 1:26:22( Edit History Discussion )

Jeff Sessions: municipal building's holiday display. the seventh circuit unanimously reversed that erroneous finding that judg hamilton failed to acknowledge the rabbi's right to display the menorah as symbolic religious speech protected by the constitution. as we know, in the constitution's first

1:26:23 to 1:26:44( Edit History Discussion )

Jeff Sessions: it says "congress" -- us -- "congress shall make no law respecting the establishment of a religion or prohibiting the free exercise thereof." and that's all the constitution says about religion. and it just as strongly prohibits limitations on free exercise of religion as it

1:26:45 to 1:27:05( Edit History Discussion )

Jeff Sessions: clearly prohibits the government from establishing a church and making it preferable over others. so it's interesting that the results reached in decisions are strikingly similar to the provisions scntsly add vow educated by -- consistently advocated by the organization which with judge hamilton has been associated

1:27:06 to 1:27:27( Edit History Discussion )

Jeff Sessions: with prior to becoming a judge. judge hamilton's problematic rulings are not limited to cases involving religion, lawyers quoted in the almanac of the federal judiciary describe him as one of the most lenient judges had his district in criminal matters. his rulings on the bench have lived up to

1:27:28 to 1:27:49( Edit History Discussion )

Jeff Sessions: in the rinehart case, judge hamilton, i think, inappropriately acted and used his opinion in the case to request clemency -- that is, either an elimination of the penalty that he imposed pursuant to the mandatory federal

1:27:50 to 1:28:10( Edit History Discussion )

Jeff Sessions: guidelines, at least within that range, or for a police officer who had guilty to two seeing pornography or possessing pornography.

1:28:11 to 1:28:31( Edit History Discussion )

Jeff Sessions: the 32-year-old officer had engaged in consensual -- quote -- "consensual sex" with two teenagers and video taped the activity. in united states v. woolsey, the seventh circuit faulted the judge for disregarding an earlier federal felony drug

1:28:32 to 1:28:52( Edit History Discussion )

Jeff Sessions: convtion or at least an earlier federal -- an earlier felony conviction in order to avoid imposing a sentence -- a life sentence on a repeat offender. he didn't want to do that so he ignored the prior conviction that would have called for that.

1:28:53 to 1:29:14( Edit History Discussion )

Jeff Sessions: in reversing his decision, the seventh circuit reminded judge hamilton ignore prior convictions. regardless of whether he deemed the penalty for recidivists to be appropriate judge hamilton's most activist decisi

1:29:15 to 1:29:36( Edit History Discussion )

Jeff Sessions: rulings in a woman's choice v. newman through the r50u8ings in this case, the judge succeed in blocking the enforcement of an indiana confirm consent law. in reversing the seventh circuit judges -- seventh circuit court, noted that judge hamilton abused his discretion. and this is how they described

1:29:37 to 1:29:57( Edit History Discussion )

Jeff Sessions: it. and i think this is a really strong condemnation from my experience as to how appellate judges deal with lower-court judges who make errors. they know judges make errors from time to time. they're usually pretty just reverse it and try not to

1:29:58 to 1:30:18( Edit History Discussion )

Jeff Sessions: be too critical. but this is what they said in this case. quote -- "for seven years, indiana has been prevented from enforcing a statute materially identical to a law held valid by

1:30:19 to 1:30:40( Edit History Discussion )

Jeff Sessions: this court in carlin and by the fifth circuit no court anywhere in the country [other than one district court in indiana] -- and they're referr to judge hamilton -- "has held any similar law invalid in the years since casey. indi wisconsin, is entitled to put

1:30:41 to 1:31:02( Edit History Discussion )

Jeff Sessions: its into effect and have that law judged by its own consequences." in other words, if didn't like the consequences of it, if his empathy made him believe that this wasn't a good poarvelings he's not empo not empowered to do that.

1:31:03 to 1:31:24( Edit History Discussion )

Jeff Sessions: the legislature passed constitutional statute that simply said before a person has aan abortion, they must be given informed -- notice of what all the ramifications of it so they can be informed when they make their decision. and apparently he didn't like that. and for seven years, through a series of rulings, kept it from

1:31:25 to 1:31:46( Edit History Discussion )

Jeff Sessions: being he be forced. -- kept it from being enf so i think this case is a blatant example, his allowing personal views to frustrate the will of the people and the popularly elected representatives of the

1:31:51 to 1:32:12( Edit History Discussion )

Jeff Sessions: government of indiana. through a lot as a result of this. there were multiple appeals and lawsuits and attorneys. they were forced to expend great sums of money to overcome what appears to me to be obstructionism. mr. president, as chief justice roberts said it best when he

1:32:13 to 1:32:35( Edit History Discussion )

Jeff Sessions: said judges should be neutral umpires, calling balls and strikes based on the law and evidence. unfortunately, judge hamilton disagrees with the idea that a judge should be a neutral umpire umpire. this is what he said. judges reach different decisions

1:32:36 to 1:32:56( Edit History Discussion )

Jeff Sessions: from time to time. in that sense, the call is not "was a ball or a strike" but taking into account what happened and its affect parties and what are practical consequens. we don't want a baseball umpire that says, well, if iall this a strike, that will be the

1:32:57 to 1:33:18( Edit History Discussion )

Jeff Sessions: out and the game will be over. is that the -- i just say i believe in all sincity that these views represent a results-oriented activist philosophy that is hostile to the great american

1:33:19 to 1:33:39( Edit History Discussion )

Jeff Sessions: role of a judge in our constitutional system. i b him for elevation to the court of appeals, and this is one of those extraordinary circumstances where i president should be informed of that fact by a vote of this senate and that's why i will not be able to support cloture.

1:33:40 to 1:34:00( Edit History Discussion )

Jeff Sessions: mr. president, it will be the first time i have voted not to have cloture in a matter of this kind. i take this very seriously. i talked about it yesterday. if we could reach an agreement with my colleag, senator leahy

1:34:01 to 1:34:25( Edit History Discussion )

Jeff Sessions: and others, to not follow the filibuster rule, i think the senate would probably be better. but under president bush, some 27 or 30 filibuster hes against his nominees were affected. eventually we had a political brouhaha here for sever that culminated in a decision

1:34:26 to 1:34:47( Edit History Discussion )

Jeff Sessions: that the acceptable if you believed there were extraordinary circumstances justifying that and -- against a nominee. i think this judge's history and background reach that level and that's why i will not be voting for him. but i don't think we should abuse this policy. i'm -- i think we'd be better

1:34:48 to 1:35:07( Edit History Discussion )

Jeff Sessions: off if not, but that's what the senate basically decided when the gang of 14 reached their agreement in the midst of debate by those who said you shouldn't filibuster and those who said you can, and they reached that agreement. so i think that's probably the state of the situation in the