Nominations

Mr. DURBIN. Mr. President, to those of us who have been given this great honor to serve in the Senate, there is a moment when we are asked to take the oath of office. In taking that oath of office, we swear to uphold one document. That document, of course, is the Constitution of the United States of America.

We are not asked our religion, nor our beliefs in our religion. We are only asked if we will take an oath to God that we will uphold this Constitution. All of us take it very seriously and all of us take the wording of this Constitution very seriously because within this small document are words that have endured for more than two centuries. There was wisdom in that Constitutional Convention which America has relied on ever since.

Sometimes people say, times have changed. And we do amend the Constitution from time to time. By and large the principles that guided those men who wrote this Constitution have guided this Nation to greatness. I am honored to be a small part of this Nation's history and to serve in the Senate.

I looked to this Constitution for guidance for this debate tonight, and I find that guidance in Article 6 of the Constitution. Let me read a few words from that book.

.    .    . no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Most of the men who wrote this Constitution were religious people. They had seen the abuse of religion. They had seen leaders in other countries using religion for political purposes and against other people. They came to this land and said, it will be different in America. We are going to protect your right to believe. We are not going to establish a government church and we will say in our Constitution that no religious test will ever be required of a person seeking a nomination for public office in our land.

Those are very absolute and clear words. I am a Catholic, born and raised. My mother and father were Catholics. My children have been raised in the Catholic faith. In my lifetime, I have seen some amazing things happen. In 1960, I was about 15 or 16 years old. There was a Presidential race with a candidate by the name of John Fitzgerald Kennedy of Massachusetts. That may be the first Presidential election I followed closely. I remember watching the Los Angeles convention on my black-and-white television at home in East St. Louis. I took a special interest because I had a stake. The John Fitzgerald Kennedy candidacy was the first opportunity since Alfred Smith for the election of a Catholic to be President of the United States. We do not think twice about that now, but in 1960 it was a big deal. And a big problem for John Kennedy. So much so that he feared he might lose the election over that issue.

He did something that was historic and I guess unprecedented. He went to Texas and addressed a Baptist convention to explain his view of the relation of church and State because there were real concerns. Many people felt that those who were believers of the Catholic church were so connected and so committed to the teachings of the church and to the leader of the church, the Pope in Rome, that they could not make objective decisions on behalf of the United States; they would be clouded in their judgment because of the demands of their faith.

John Kennedy, a Catholic, went to Texas to a Baptist convention to tell those gathered that his first allegiance as President was to the United States and not to any religion. He said: I believe in America where the separation of church and State is absolute.

Many people think that statement and that visit turned the election for John Kennedy, an election which he won by just a very small margin. It dispelled the fears and concerns of many people across the country that a Catholic would be first loyal to Rome and then loyal to the United States.

It is an interesting thing to reflect on the view of Catholics in public life in 1960 and the debate which is taking place tonight. The issue has come full circle. Now there are those who argue that because a nominee comes before the Senate and professes to be a Catholic that we cannot ask that nominee questions about his political beliefs. There are many religious beliefs that are also political beliefs. There are some religious beliefs that are not. You can be an adherent to the Jewish religion, keep kosher, and I cannot imagine how that becomes a political issue. What is the purpose of asking a question about that? But whether you are Jewish, Catholic, Protestant, or Muslim, it is appropriate to ask any nominee for a judicial position, Where do you stand on the death penalty? That is a political issue. It is a social issue. And yes, it is also a religious issue.

Some have argued tonight if a person comes before the Senate with strong religious convictions that somehow we are disqualified from asking questions about political issues. I see it much differently. I think the Constitution makes it very clear we should never ask a person their religious affiliation. Article 6 of the Constitution says that is not a qualification for public office.

So what business do we have asking that question? But to say that because a person's political beliefs also happen to be their religious beliefs, that for some reason we cannot ask questions about them, goes entirely too far.

Consider a so-called church in my State, the World Church of the Creator in Pekin, IL. A deranged individual named Matt Hale—who could not be approved by the committee on character and fitness after he had passed law school and therefore was never licensed to practice law—decided to create a church and an Internet Web site in the name of that church, the World Church of the Creator, and started peddling the most venomous beliefs imaginable—bigoted, hateful, racist, anti-Semitic beliefs in the name of religion. This church and its so-called teachings drew some demented followers. It culminated one day when one of those followers went on a shooting spree, killing a basketball coach of Northwestern University, Ricky Birdsong, and then driving over to the University of Indiana and gunning down an Asian student, and was finally apprehended.

When Matt Hale was asked about the activities of this individual, he said, that is just our religion. Their religion.

If someone who comes before us with unusual beliefs and political issues says, stop, you cannot ask me about those beliefs because they are my deeply held personal religious convictions, are we then disqualified? If we are, imagine where that can lead.

In this case we have an individual, William Pryor, Attorney General of Alabama, who is a Catholic. The reason I know that is the chairman of the Senate Judiciary Committee, ORRIN HATCH, asked him. That is the first time I can recall in the 4½ years I have served on this committee that it has ever been asked of any nominee. Tonight Senator Hatch said he would never do it again. I am glad to hear him say that. I hope he never does that again and I hope no committee chairman of any committee ever asks any nominee for office their religion. The Constitution makes it clear we should not. But the exception was made by Senator Hatch and he asked Mr. Pryor his religion.

That triggered this ad campaign which we have discussed tonight and this heated debate which many have followed in the Senate. We have had Members come to the Senate, one who is a Catholic, saying, This is what good Catholics believe.

I 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. I don't like to stand in judgment of my peers as to whether they are good people or not; let their lives speak for themselves. And I certainly would never stand in judgment of someone's adherence to a certain religious belief. That is personal, as far as I am concerned. But not personal to some of my colleagues.

They come to the floor and make pronouncements about who is a good religious person and who is not. I am not comfortable with that. In fact, I am a little bit uncomfortable discussing this issue of religion in the Senate, but I have no choice. It has been brought before us.

What I believe is this: Within the Catholic church there are many differences of opinion, even within the church members who serve in the Congress. I know of one or two who I think are really close to adhering to all of the church's beliefs in the way that they vote, but only one or two, because although those who come to the floor want to argue to you that the Catholic Church is only about one issue, abortion, there are many of us who believe it is about a lot of issues.

It is about the death penalty—the death penalty, where the church has been fairly clear in its position. Again, I am troubled that I would even read this and put it into the Congressional Record, but I have no choice, based on what has been said over the last 3 hours. This is a statement by Pope John Paul II, St. Louis, MO, January 22, 1999:

THE NEW EVANGELIZATION CALLS FOR FOLLOWERS OF CHRIST WHO ARE UNCONDITIONALLY PRO-LIFE, WHO WILL PROCLAIM, CELEBRATE, AND SERVE THE GOSPEL OF LIFE IN EVERY SITUATION. A SIGN OF HOPE IS THE INCREASING RECOGNITION THAT THE DIGNITY OF HUMAN LIFE MUST NEVER BE TAKEN AWAY, EVEN IN THE CASE OF SOMEONE WHO HAS DONE GREAT EVIL. MODERN SOCIETY HAS THE MEANS OF PROTECTING ITSELF WITHOUT DEFINITIVELY DENYING CRIMINALS THE CHANCE TO REFORM. I RENEW THE APPEAL I MADE MOST RECENTLY AT CHRISTMAS FOR A CONSENSUS TO END THE DEATH PENALTY, WHICH IS BOTH CRUEL AND UNNECESSARY.

The words of Pope John Paul II. You didn't hear much reference to the Catholic Church's position on the death penalty tonight by those who were saying that William Pryor is being discriminated against because of his Catholic beliefs. Perhaps it is because Mr. Pryor not only supports capital punishment, he fought State legislation in Alabama which sought to replace the electric chair with lethal injection.

I am not going to stand in judgment as to whether or not he is a good Catholic. That is not my place. But I bring this issue before my colleagues so they can understand that the Catholic Church is about more than one issue. There are those who hold beliefs which may or may not agree with all the teachings of that church, and that is within their conscience and their right to do. It is not mine to judge.

But for us to be told repeatedly by the other side of the aisle that to oppose William Pryor is to be against him because he is Catholic is just plain wrong, and I resent it. I resent it because, frankly, there are many reasons to oppose his nomination—because of his political beliefs.

Oh, yes, some relate to his religion and some don't. But what we are told in the Constitution is that distinction makes no difference; whether they are religious or not, stick to political beliefs. And I believe my colleagues have really tried to do that on the committee.

Let me also say I was disappointed that the Senator from Pennsylvania, Mr. Santorum, earlier quoted, I believe out of context, the statement made by Senator Feinstein of California. It was unfair to her because she had left the floor and he characterized some of her remarks in ways that I don't believe she intended. To make certain that the record is clear, I asked her staff to provide me with a copy of the speech which she gave, and I would like to read an excerpt of that speech given on the floor this evening by Senator Feinstein to clarify and make certain the Senate understands that the quote which was referred to earlier by the Senator from Pennsylvania was inaccurate.

I quote what Senator Feinstein said:

EACH TIME THE DEMOCRATS OPPOSE A NOMINEE, WE ARE ACCUSED OF SOME SORT OF BIAS UNRELATED TO THE MERITS. WITH MIGUEL ESTRADA, WE WERE ACCUSED OF BEING ANTI-HISPANIC. WITH PRISCILLA OWEN, ANTI-WOMAN. WITH CHARLES PICKERING, ANTI-BAPTIST. AND NOW, WITH WILLIAM PRYOR, ANTI-CATHOLIC.

THESE CHARGES HAVE BEEN DESCRIBED BY SOME AS "SCURRILOUS," AND I AGREE. TO DESCRIBE DEMOCRATS AS ANTI-HISPANIC AFTER THE MANY HISPANIC CLINTON NOMINEES THAT WERE STOPPED IN THEIR TRACKS BY A REPUBLICAN MAJORITY IS DISINGENUOUS AT BEST.

TO CALL US ANTI-WOMAN, WELL, [AS SENATOR FEINSTEIN SAID] I DON'T HAVE TO TELL YOU HOW BIZARRE IT IS FOR ME TO BE CALLED ANTI-WOMAN.

AND TO SAY WE HAVE SET A RELIGIOUS LITMUS TEST IS EQUALLY FALSE.

MANY OF US HAVE CONCERNS ABOUT NOMINEES SENT TO THE SENATE WHO FEEL SO VERY STRONGLY ABOUT CERTAIN POLITICAL BELIEFS, AND WHO MAKE INTEMPERATE STATEMENTS ABOUT THOSE BELIEFS THAT WE RAISE QUESTIONS ABOUT WHETHER THOSE NOMINEES CAN BE TRULY IMPARTIAL.

AND IT IS TRUE THAT ABORTION RIGHTS ARE OFTEN AT THE CENTER OF THOSE QUESTIONS. AS A RESULT, ACCUSATIONS HAVE BEEN LEVELED THAT ANYTIME REPRODUCTIVE CHOICE BECOMES AN ISSUE, IT ACTS AS A LITMUS TEST AGAINST THOSE WHOSE RELIGION CAUSES THEM TO BE ANTI-CHOICE.

BUT PRO-CHOICE DEMOCRATS HAVE VOTED FOR MANY NOMINEES WHO ARE ANTI-CHOICE AND WHO BELIEVE THAT ABORTION SHOULD BE ILLEGAL—SOME OF WHOM MAY HAVE EVEN BEEN CATHOLIC. I DON'T KNOW, BECAUSE I HAVE NEVER INQUIRED.

SO THIS IS NOT ABOUT RELIGION. THIS IS ABOUT CONFIRMING JUDGES WHO CAN BE IMPARTIAL AND FAIR IN THE ADMINISTRATION OF JUSTICE. AND WHEN A NOMINEE LIKE WILLIAM PRYOR MAKES SOME FAIRLY INFLAMMATORY STATEMENTS AND EVIDENCES SUCH STRONGLY HELD BELIEFS ON SUCH CORE ISSUES, IT IS HARD FOR MANY OF US TO ACCEPT THAT HE CAN SET ASIDE THOSE BELIEFS AND ACT AS AN IMPARTIAL JUDGE.

Somehow, that was characterized as questioning General Pryor's religious beliefs. I do not think any fair reading would reach that conclusion. In fact, I think Senator Feinstein was as careful as we all have been to draw that clear and bright line that the Constitution requires us to draw.

She said at one point there—and it may come as curious to people following the debate—that she is not certain about how many Catholics we voted for because, you see, that is not one of the required questions when a person applies for a judgeship in this country. We do know, though, just by taking a look at some of their resumes, that they belong to some organizations which suggest that they might be Catholic. So I would like to say for the record that the argument that we have somehow discriminated against Catholics who are opposed to abortion is not supported by the evidence.

We have, for example, confirmed a circuit judge who was active in the Knights of Columbus and the Serra Club and sits on the board of a Catholic school—Michael Melloy.

We confirmed a district court judge who is a member of the parish council of his Catholic church, the president's advisory board of a Jesuit High School Parents' Club, the St. Thomas More Society for Catholic lawyers, and his State's chapter of Lawyers for Life—Jay Zainey.

We confirmed a district court judge who was the former president of Catholic Charities of her city's diocese and a member of both the Catholic League and of the St. Thomas More Society—Joy Flowers Conti.

This serves as clear evidence that Democrats do not have an abortion litmus test for judicial nominees. There have been many we have confirmed who were opposed to Roe v. Wade and have made it very clear that they are opposed to it.

Some names that I can refer to very quickly: John Roberts, DC Circuit; Jeffrey Howard, First Circuit; John Rogers, Sixth Circuit; Deborah Cook, Sixth Circuit; Lavenski Smith, Eighth Circuit; Timothy Tymkovich, Tenth Circuit; Michael McConnell, Tenth Circuit; and the list goes on.

So for colleagues to stand before us and say we discriminate against Catholics, the record doesn't show it. There are people who clearly have Catholic affiliations in their background who have been approved by this committee and are supported by Democrats. For them to argue that we have a litmus test and turn down judges just because they oppose abortion denies over 140 nominees coming out of the Bush White House, most of whom are pro-life and most of whom disagree with Roe v. Wade personally and still have won our approval. I read a partial list.

In my own situation, I am pro-choice. I have personal feelings against abortion but believe that in my public capacity women should have the right to choose. And yet in my own home State of Illinois, of the 12 judges I have had the privilege to appoint to the Federal bench, at least 3 I have come to learn afterward were pro-life. I learned it afterward because I didn't ask them in advance. It really wasn't a condition for their appointment as far as I was concerned. I just want them to be fair minded and balanced. Whether they disagree with me on that issue or one other issue is really secondary.

So what we have before us today is an effort by the proponents of William Pryor to ask us to look beyond his political beliefs and really turn this into a debate about religion. I hope we don't do that. I hope we don't do it for his sake and I hope we don't do it for the sake of the Senate.

The Senate Judiciary Committee meeting of last week was one of the saddest times I have spent as a Senator. I saw things happen in that committee that I hope will never be repeated. I saw members of the committee raise the issue of religion in a way which the Constitution has never countenanced and I hope and pray has never happened before in that committee. I hope it never happens again.

The nomination of William Pryor is fraught with controversy. This whole question about his involvement with the Republican Attorneys General Association—we haven't even completed that investigation. This man's nomination comes to the floor before questions have been asked and answered that are serious questions about possible ethical considerations.

I won't prejudge the man as to whether he will be cleared of any suspicion or not. But in fairness to him, in fairness to the process, in fairness to the Senate, should not we have completed that investigation before he was reported from committee?

When it comes to critical issues involving Mr. Pryor's background, a lot of different groups have raised questions about him. The argument is being made on the other side that the only reason you can possibly oppose William Pryor is if you are anti-Catholic.

How then do you explain the editorials in opposition to his nomination? Editorials from Tuscaloosa, AL; editorials from Huntsville, AL; the Washington Post; Charleston, SC; St. Petersburg, FL; Arizona; the Atlanta Journal-Constitution; Honolulu Adviser; Pittsburgh newspapers—the list goes on.

Are we to suggest that all these newspapers that oppose his nomination are anti-Catholic? Not if you read the editorials. They have gone to his record and they have come to the conclusion that he is not the appropriate person to serve in this circuit court capacity.

Let me tell you some of the issues they raise. Mr. Pryor's zeal to blur the lines between church and state, a line that was clearly drawn in our Constitution and clearly drawn by John Kennedy, Presidential candidate, is a problem. He is so ideological about the issue that he has confessed, "I became a lawyer because I wanted to fight the ACLU." He then derided that organization as standing for "the American 'Anti-Civil' Liberties Union." I asked him if he would recuse himself in cases involving the ACLU. He said no, but he pledged:

AS A JUDGE, I COULD FAIRLY EVALUATE ANY CASE BROUGHT BEFORE ME IN WHICH THE ACLU WAS INVOLVED.

Mr. Pryor and I are just going to have to disagree on that particular statement.

He has been a staunch supporter of Alabama Chief Justice Roy Moore and his midnight installation of a 6,000-pound granite Ten Commandments monument in the middle of the State courthouse. The Eleventh Circuit Court recently ruled that the display was patently unconstitutional and had to be removed.

At his confirmation hearing, Senator Feinstein asked him to explain his statement that:

.    .    . the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.

He ducked the question.

I think if you are going to serve this Nation and you are going to serve this Constitution, you have to have some sensitivity to the diversity of religious belief in this country. To argue that this is a Christian nation—it may have been in its origin but today it is a nation of great diversity. That diversity is protected by this Constitution. Obviously, Mr. Pryor has some problems in grasping that concept.

On the issue of judicial activism, not only does Mr. Pryor have problems with separation of church and state, he also has problems separating law and politics. He believes that it is the job of a Federal judge to carry out the political agenda of the President. How else could you interpret his comments about the Bush v. Gore case in the year 2000 when he said:

I'M PROBABLY THE ONLY ONE WHO WANTED IT 5 TO 4. I WANTED GOVERNOR BUSH TO HAVE A FULL APPRECIATION OF THE JUDICIARY AND JUDICIAL SELECTION SO WE CAN HAVE NOT MORE APPOINTMENTS LIKE JUSTICE SOUTER.

That is a statement by William Pryor.

On another occasion, he said:

[O]UR REAL LAST HOPE FOR FEDERALISM IS THE ELECTION OF GOV. GEORGE W. BUSH AS PRESIDENT OF THE UNITED STATES, WHO HAS SAID HIS FAVORITE JUSTICES ARE ANTONIN SCALIA AND CLARENCE THOMAS. ALTHOUGH THE ACLU WOULD ARGUE THAT IT IS UNCONSTITUTIONAL FOR ME, AS A PUBLIC OFFICIAL, TO DO THIS IN A GOVERNMENT BUILDING, LET ALONE AT A FOOTBALL GAME, I WILL END MY PRAYER FOR THE NEXT ADMINISTRATION: PLEASE GOD, NO MORE SOUTER.

I ask Mr. Pryor, a member of the Federalist Society, whether he agrees with the following statement from the Federalist Society mission: "Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society." I have asked this question of almost every Federalist Society member that has been nominated by President Bush. Mr. Pryor is the only person who gave me a one word answer. He said, "Yes."

On the issue of federalism, Mr. Pryor has been a predictable, reliable voice for entities seeking to limit the rights of Americans in the name of States' rights. He has filed brief after brief with the Supreme Court arguing that Congress has virtually no power to protect State employees who are victims of discrimination.

Under his leadership, Alabama was the only State in the Nation to challenge the constitutionality of parts of the Violence Against Women Act, while 36 States filed briefs urging that this important law be upheld in its entirety—the exact opposite position of one Attorney General William Pryor.

He also filed a brief in the recently decided case of Nevada v. Hibbs. He argued that Congress has no power to ensure that State employees have the right to take unpaid leave from work under the Family and Medical Leave Act. A few months ago the Supreme Court rejected his argument and said:

MR. PRYOR, YOU HAVE GONE TOO FAR THIS TIME.

The issue of women's rights has been well documented. I will not go into those again.

On the issue of voting rights, Mr. Pryor urged Congress to eliminate a key provision in the Voting Rights Act which protects the right to vote for African Americans and other racial minorities. While testifying before this committee in 1997, Mr. Pryor urged Congress to "seriously consider .    .    . the repeal or amendment of section 5 of the Voting Rights Act" which he labeled "an affront to federalism and an expensive burden that has far outlived its usefulness."

Given the importance of section 5 of the Voting Rights Act to the ability of African Americans and other racial minorities to achieve equal opportunity in voting, this call for its repeal is deeply disturbing. Thankfully, the Supreme Court and Congress disagreed with Mr. Pryor about the importance of section 5 of the Voting Rights Act.

There was one case involving inmates' rights which I thought was particularly noteworthy. He has been a vocal opponent of the right of criminal defendants. In Hope v. Pelzer, Attorney General Pryor vigorously defended Alabama's practice of handcuffing prison inmates to outdoor hitching posts for hours without water or access to bathrooms. The Supreme Court rejected Mr. Pryor's arguments citing the "obvious cruelty inherent in the practice," and calling the practice "antithetical to human dignity" and circumstances "both degrading and dangerous."

In a July 2000 speech, Attorney General Pryor was outspoken in his disdain for the Supreme Court's reaffirmation in Dickerson v. United States of the constitutional protection of self-incrimination first articulated in Miranda. He called the Dickerson decision, authored by Chief Justice Rehnquist an "awful ruling that preserved the worst example of judicial activism."

The list goes on.

In the case called United States v. Emerson, Attorney General Pryor filed an amicus brief to argue that a man who was the subject of a domestic violence restraining order should be allowed to possess a firearm.

Let me repeat that.

The man who was the subject of a domestic restraining order should be allowed to own a firearm.

Mr. Pryor called the Government's position a "sweeping and arbitrary infringement on the second amendment right to keep and bear arms." He was the only State attorney general in the United States of America to file a brief in support of that position.

When it comes to tobacco, he has been one of the Nation's foremost opponents of a critical public health issue—compensation for the harms caused by tobacco companies. He has ridiculed litigation against companies stating:

THIS FORM OF LITIGATION IS MADNESS. IT IS A THREAT TO HUMAN LIBERTY, AND IT NEEDS TO STOP.

Mississippi Attorney General Michael Moore said:

BILL PRYOR WAS PROBABLY THE BIGGEST DEFENDER OF TOBACCO COMPANIES OF ANYONE I KNOW. HE DID A BETTER JOB OF DEFENDING THE TOBACCO COMPANIES THAN THEIR OWN DEFENSE ATTORNEYS.

Arizona Attorney General Grant Woods, a Republican, said of William Pryor:

HE'S BEEN ATTORNEY GENERAL FOR ABOUT FIVE MINUTES, AND ALREADY HE'S ACTED MORE POORLY THAN ANY OTHER ATTORNEY GENERAL.

On the issue of environmental protection, time and again he has looked the other way when it comes to protecting our environment.

For people to argue that the only position against William Pryor is based on his religion ignores the obvious. When it comes to his political beliefs, when it comes to his actions as attorney general of Alabama, time and time again he has taken extreme positions.

Should this man be entrusted to a lifetime appointment to the second highest court of the land? I think not. Many others agree with that conclusion.

I certainly hope that when this debate ends, however it ends, that we will call an end to the involvement of religion in this debate.

It has been a sad night for me to listen to what some of my colleagues have said in an effort to promote the political agenda of a certain part of America in an effort to promote the candidacy of an individual. I am afraid many of my colleagues have crossed a line they should never have crossed.

I hope and pray that before we utter the next sentence in relation to the Pryor nomination that each of us who has taken an oath to uphold this Constitution will stop and read article VI:

NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST IN THE UNITED STATES.

Those words have guided our Nation for over 200 years. They should guide each of us in good conscience.

I yield the floor.