UNITED STATES OF AMERICA Congressional Recording letter: U.S. SENATE, PRESIDENT PRO TEMPORE,...

UNITED STATES OF AMERICA

Congressional RecordPROCEEDINGS AND DEBATES OF THE 103d CONGRESS

FIRST SESSION

VOLUME 139—PART 9

MAY 28, 1993 TO JUNE 21, 1993

(PAGES 11999 TO 13449)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1993

69-059 0—97 Vol. 139 (Ft. 9) 1

12562 CONGRESSIONAL RECORD—SENATE

SENATE—Monday, June 14, 1993(Legislative day of Monday, June 10,1993)

June 14, 1993

The Senate met at 2:30 p.m., on theexpiration of the recess, and was calledto order by the Honorable PATTY MUR-RAY, a Senator from the State of Wash-ington.

PRAYER

The Chaplain, the Reverend RichardC. Halverson, D.D., offered the follow-ing prayer:

Let us pray:Blessed is the nation whose God is the

Lord.—Psalm 33:12.God of our fathers, as a new Senator

takes her oath of office, promising todefend the Constitution against all en-emies, we are profoundly grateful for adocument which merits this commit-ment from all who hold public office.We thank Thee for the wisdom and vi-sion of our forebears who conceived apolitical system designed to form agovernment receiving its authorityfrom the consent of the governed whosepurpose was to secure human rights,endowed by God who created all per-sons equal.

We praise and thank Thee, mightyGod, for the faith expressed over andover again in their writings andspeeches. Help us gracious God, to takeseriously this faith—the foundationupon which our political system rests,lest we lose by default that which wepromise to defend.

We pray in His name who is the Lightof the world. Amen.

APPOINTMENT OF ACTINGPRESIDENT PRO TEMPORE

The PRESIDING OFFICER. Theclerk will please read a communicationto the Senate from the President protempore [Mr. BYRD].

The legislative clerk read the follow-ing letter:

U.S. SENATE,PRESIDENT PRO TEMPORE,Washington, DC, June 14,1993.

To the Senate:Under the provisions of rule I, section 3, of

the Standing Rules of the Senate, I herebyappoint the Honorable PATTY MURRAY, aSenator from the State of Washington, toperform the duties of the Chair.

ROBERT C. BYRD,President pro tempore.

Mrs. MURRAY thereupon assumedthe chair as Acting President pro tem-pore.

RECOGNITION OF THE MAJORITYLEADER

The ACTING PRESIDENT pro tem-pore. The Chair recognizes the major-ity leader.

WELCOME TO MRS. KAY BAILEYHUTCHISON

Mr. MITCHELL. Madam President,the purpose of today's session of theSenate is to welcome and to partici-pate in the swearing-in of the newlyelected Senator from Texas, Mrs. KAYBAILEY HUTCHISON.

On behalf of all of the Members of theU.S. Senate, I welcome Mrs. HUTCHISONto our ranks.

A SIGNIFICANT DAYMr. MITCHELL. Madam President,

this is a significant day in many re-spects. On the day prior to this swear-ing-in, a woman was nominated to be-come the Prime Minister of Canada.Just a few moments ago, the Presidentannounced the nomination of a womanto serve on the Supreme Court. AndMrs. HUTCHISON is being sworn in herethis afternoon.

I think all of those reflect a positivetrend, not only in ours but in other so-cieties, toward the full participation ofwomen in the processes of government.

ORDER OF PROCEDUREMr. MITCHELL. Madam President, I

have discussed the matter with the dis-tinguished Republican leader. Prior tothe swearing in, I have two brief state-ments to make on subjects which thedistinguished Republican leader willhimself address. The first deals withJudge Ginsburg.

NOMINATION OF JUDGE RUTHBADER GINSBURG

Mr. MITCHELL. Madam President, Iwelcome the President's nomination ofa distinguished appeals court judge,Judge Ruth Bader Ginsburg, to replaceJustice Byron White on the SupremeCourt.

Judge Ginsburg's career on and offthe bench has been remarkable. A grad-uate of Columbia Law School in an erawhere few women aspired to legal stud-ies, she was the first woman appointeda professor of law at Columbia.

As the general counsel of the wom-en's rights project of the AmericanCivil Liberties Union from 1972 to 1980,she played a central role in virtuallyall of the key cases involving equalrights analysis based on gender.

She was instrumental in persuadingthe Supreme Court to grant heightenedscrutiny to issues of gender discrimina-tion.

Her career on the appellate court hasmade her one of the most respectedjudges on the D.C. Circuit Court. Shewas the lone dissenting appellate judgeon the case of Morrison versus Olsen, ajudgment that was subsequently vindi-cated by an 8-to-l ruling of the Su-preme Court.

Judge Ginsburg will bring a distin-guished record of legal experience andknowledge to the Court. She will bring,as well, a willingness to recognize theproper role of the judiciary in a demo-cratic society, and in our Govern-ment's system of checks and balances.

CONCERN AND PRAYERS FORSENATOR SPECTER

Mr. MITCHELL. Madam President, Iknow I speak for all Members of theSenate, also, to express our deep con-cern and prayers for our colleague,Senator ARLEN SPECTER of Pennsylva-nia, who this day underwent a majoroperation. We all hope and pray forSenator SPECTER'S swift recovery. Welook forward to welcoming him back tothe Senate in the near future.

WELCOME AND BEST WISHESFROM SENATORS

Mr. MITCHELL. Finally, MadamPresident, in welcoming Mrs.HUTCHISON to the Senate, I want to saythat we had hoped that there would bemore Senators present. This is a day onwhich the Senate is not in session withvotes and, therefore, many Senatorsare not present. Each of them hasasked me to extend to her our welcomeand our best wishes.

Madam President, I yield to the dis-tinguished Republican leader at thistime.

RECOGNITION OF THEREPUBLICAN LEADER

The ACTING PRESIDENT pro tem-pore. The Chair recognizes the Repub-lican leader.

NOMINATION OF JUDGE GINSBURGMr. DOLE. Madam President, I be-

lieve President Clinton made a goodchoice today with his nomination ofJudge Ruth Bader Ginsburg to fill thevacancy on the Supreme Court causedby the expected departure of JusticeByron White.

As pointed out by the distinguishedmajority leader, she has a distin-guished career.

This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

June 14, 1993 CONGRESSIONAL RECORD—SENATE 12563Not surprisingly, she has a long

paper trail, having written hundreds oflegal opinions and more than 40 arti-cles.

Obviously, these will be reviewed bymembers of the committee and others.

Having voted for Judge Ginsburg in, Ibelieve, June 1980, almost 13 years ago,to be a member of the circuit court,both in the committee—I was a mem-ber of the Judiciary Committee at thattime—and also on the floor, I certainlywish her the best. I expect her nomina-tion will be well received.

She is also a neighbor in the samebuilding in which we live, and it is agood bipartisan building.

SENATOR SPECTER'S RECOVERYMr. DOLE. Madam President, I also

thank the majority leader for his com-ments about Senator SPECTER.

I spoke with Mrs. Specter at about12:45 today. The operation, as far as sheknows, was a complete success. It tookless time than they expected. They willhave the pathology tomorrow.

But he was, she said, wiggling histoes and talking—and that seemed tobe a very good sign—almost imme-diately after the operation.

In fact, he did not discover this untilthis past Friday in an examination atBethesda.

But he is alert and talking. No ques-tion about it, he will be missed. He willbe back very soon. We should havemore information tomorrow.

PRAYERS FOR GOV. ROBERTCASEY

Mr. DOLE. Madam President, it isalso fair to say that our thoughtstoday are also with the Governor ofPennsylvania, Governor Casey, who isundergoing very serious surgery today.I know our prayers are extended bothto the Governor and his family, and toSenator SPECTER and his family.

CREDENTIALSThe VICE PRESIDENT. The Chair

lays before the Senate the credentialsof Senator-elect KAY BAILEY HUTCHISONof the State of Texas, duly certified bythe Governor of said State.

Without objection, the credentialswill be placed on file and the certifi-cate of election will be deemed to havebeen read.

The certificate reads as follows:STATE OP TEXAS—CERTIFICATE OF ELECTION

FOR UNEXPIRED TERMTo the President of the Senate of the United

States:This is to certify that on the fifth day of

June, 1993, Kay Bailey Hutchison was dulychosen by the qualified electors of the Stateof Texas a Senator for the unexpired termending at noon on the 3rd day of January,1995, to fill the vacancy in the representationfrom said State in the Senate of the United

States caused by the resignation of LloydBentsen.

Witness: Her excellency Ann W. Richards,our governor, and our seal hereto affixed atAustin this 10th day of June, in the year ofour Lord 1993.

ANN W. RICHARDS,Governor of Texas.

Attest:JOHN HANNAH, Jr.

Secretary of State.

ADMINISTRATION OF OATH OFOFFICE

The VICE PRESIDENT. If the Sen-ator-elect will present herself to thedesk, the Chair will administer theoath of office as required by the Con-stitution and prescribed by law.

(Mrs. HUTCHISON, escorted by Mr.GRAMM, advanced to the desk of theVice President; the oath prescribed bylaw was administered by the VicePresident, and Mrs. HUTCHISON sub-scribed to the oath in the Official OathBook.)

The VICE PRESIDENT. Congratula-tions.

[Applause, Senators rising.]Mr. MITCHELL addressed the Chair.The ACTING PRESIDENT pro tem-

pore. The Chair recognizes the major-ity leader.

PRAYERS FOR GOV. ROBERTCASEY

Mr. MITCHELL. Madam President, Iwould like to join my colleague, thedistinguished Republican leader, in ex-pressing the concern of all Senators,and prayers, for the Governor of Penn-sylvania, Robert Casey, who, as Sen-ator DOLE indicated, is also about toundergo major surgery.

CONDOLENCES TO SENATOR ALANSIMPSON

Mr. MITCHELL. Madam President, Iwould also like to express the condo-lences of all the Members of the Senateto our good friend and distinguishedcolleague, Senator ALAN SIMPSON,whose father passed away late lastweek.

Senator SIMPSON'S father was himselfa Senator and a Governor of his State.He served with great distinction inthose and other public roles. He will begreatly missed, not only by his family,but by all the people of his State ofWyoming.

Madam President, I now yield thefloor. I believe the distinguished Re-publican leader has further comments.

Mr. DOLE addressed the Chair.The ACTING PRESIDENT pro tem-

pore. The Chair recognizes the minor-ity leader.

sides of the aisle—I guess particularlyon this side of the aisle—today I amparticularly pleased to welcome Sen-ator KAY BAILEY HUTCHISON to thisChamber.

I want to say how important and sig-nificant it was that our former col-league, Senator Bentsen—now Sec-retary Bentsen—was here. No doubtabout it, KAY has big shoes to fill. AndI know Secretary Bentsen will be ather beck and call if he can do anythingto make her job here a more effectiveone for the State of Texas.

History will note that SenatorHUTCHISON is the 1,815th person, andthe 22d woman to serve in the U.S. Sen-ate.

And history will also note SenatorHUTCHISON'S election is confirmationthat 1993 is "the year of the tax-payer"—because of those 1,815 Sen-ators, few have been sent to Washing-ton with more timely or more impor-tant instructions from taxpayers thanKAY BAILEY HUTCHISON.

And as we welcome SenatorHUTCHISON to this Chamber, I also wantto welcome the hundreds of Texanswho made the trip to Washington tosee this historic ceremony.

I have never been to a Texas Long-horn football game—but I suspect theaudience there looks a lot like our gal-lery today.

[Laughter; applause.]The ACTING PRESIDENT pro tern-

pore. The Senate will be in order.Mr. DOLE. Needless to say, there is a

lot of proud Texans here today—andmost proud of all are SenatorHUTCHISON'S husband, her mother, andseveral other family members.

We all extend our welcome to KAYHUTCHISON.

I think I would say to KAY that it isgenerally good news when there are notmany Members on the floor. So do notbe disappointed that there were notmore here, because if there were morehere, we could do things; with only afew here, we cannot do very much.

So we look forward to working withKAY, starting today and from now on.We extend our congratulations to her,as I said and her family and the peopleof Texas.

WELCOME SENATOR KAY BAILEYHUTCHISON

Mr. DOLE. Madam President, on be-half of all of my colleagues on both

SALUTE TO MILWARD SIMPSONMr. DOLE. Madam President, Louis

L'Amour, the great storyteller of theAmerican West, once wrote that "whata man* is and what he becomes, is inpart due to his heritage."

This statement is confirmed by an-other storyteller of the AmericanWest—our friend and colleague, ALANSIMPSON.

For Senator SIMPSON does credit hisheritage for his commitment to publicservice.

Senator SIMPSON learned this com-mitment from his father, MilwardSimpson, who served 4 years as Gov-


(Eonaressional HecordPROCEEDINGS AND DEBATES OF THE 103d CONGRESS

FIRST SESSION

VOLUME 139—PART 12

JULY 22, 1993 TO JULY 30, 1993

(PAGES 16601 TO 18066)


17962 CONGRESSIONAL RECORD—SENATE July 30, 1993he is our President, regardless ofparty—announced legislative proposalson expedited exclusion of illegal aliensand increased penalties for criminalalien smuggling.

I have carefully reviewed those pro-posals, and I believe they constitute avery good start. Many of the provisionsare similar, even identical, to those intwo bills I introduced earlier in theCongress to address alien smugglingand asylum abuse.

Many provisions are similar to thework product of Senator FEINSTEIN,who has taken a serious and vivid in-terest in this, which is very pleasing tome because I intend to work closelywith her on these issues.

There are, perhaps, some partisan as-pects to immigration reform, refugeematters, asylum. But, by and large, allof us know that the first duty of a sov-ereign nation is to control its borders.To do that we have to do certainthings. I think many of us are ready todo that in a way which does not smackof nativism, or racism, or xenophobia,or all the stuff that is usually outthere when you try to do something re-alistic. But I support very much mak-ing entry with fraudulent documents,or no documents—make it a groundsfor exclusion with an expedited hearingand then exclusion of those who cannotestablish a "credible fear"—those arethe words, "credible fear of persecutionin the home country."

I support increased penalties foralien smugglers. I support using ourracketeering—our RICO laws—to pros-ecute organized smuggling gangs. Isupport those provisions in the admin-istration's proposals but I see someproblems with other aspects of thePresident's bill. They are notunsolvable problems. But a primarypurpose of asylum reform is to elimi-nate some of the many layers of appealpresently available to an alien claim-ing asylum. This overemphasis on proc-ess—it is almost an obsession withprocess—has created a backlog of hun-dreds of thousands of these cases.These cases can drag on for manyyears. Sometimes these people—often—get more due process than does anAmerican citizen under similar, or dif-ferent, circumstances.

The President's proposal—this is thedisturbing one to me —would create anew corps of superasylum review offi-cers, outside of the Immigration Serv-ice. I think the Attorney Generalwould like to see—I would—bringingthat group back within the Depart-ment of Justice. But they would reviewall cases where the alien is found notto have a credible fear of persecution,if he or she were to return "home." Re-member, none of them really wants togo home because if you are really anasylee, the minute you reach the coun-try of freedom you are "home"—inquotation marks. At least you areaway from the country that is perse-

cuting you. But no, they come to thesecond country, third country, fourthcountry—then here. We must stop that.

I support a supervisory review of ascreened out case. If it is said of a per-son, "You do not have a credible fear ofpersecution," I think there should beindeed a supervisory review. But I amtroubled by the administration pro-posal to create a new group whichmight be outside the ImmigrationService to review every single deniedcase. I think that is getting right backinto the ponderousness of the process.

The purpose of my bill and the ad-ministration's proposal is to create afast, firm, and fair system of dealingwith asylum claims by persons whoenter this country illegally. I think wecan assure fairness with a supervisoryreview without the cost of delay in re-view by a member of some superasylumreview officer corps.

Another concern with this proposal isadequate resources. We too often haveenacted good immigration reform leg-islation but have failed to provide ade-quate funding. As a result, we have hadlegislation which has proven ineffec-tive. A good example is the employersanctions provisions of the Immigra-tion Reform and Control Act of 1986,legislation that has never been fullyand effectively enforced by the Immi-gration Service due principally to thelack of adequate resources and, ofcourse, the other reason is because thedocuments presented have all beenfraudulent and gimmicked beyond be-lief. Until we have some form of uni-versal identifier, some form of counter-feit-resistant document, we will nothave reform. That can be done in anonintrusive way.

Because, unless we handle the prob-lems of illegal immigration and gim-mickry, we will lose our compassionfor legal immigration and bringing inwhat is now a very generous number,900,000 people a year—1 million if youwant to count it a little differently.Nevertheless we passed that law. Wedid not provide the funding for the in-vestigators needed to properly enforceit. If we do not provide adequate fund-ing for the doubling of our asylumcorps and proper funding for sufficientdetention space to hold these alienswho have entered illegally until theirclaims can be heard, the bill will not beeffective. Asylum backlogs will con-tinue to grow and the new procedureswill have no deterrent effect. The ad-ministration and the Congress must becommitted to finding the resources toproperly fund asylum and anti-smuggling legislation, and we cannotsimply take the money from other im-migration activities. That agency is al-ready underfunded.

So I do appreciate the efforts of theadministration to address this growingproblem. I suggest several changes inthe President's proposal but there ismuch in the proposal I can support and

will. Much of it is essentially in accordwith my own activities with immigra-tion reform bills.

It is a good first step, and there ismuch, much more to do. I thank thechair.

The PRESIDING OFFICER. The Sen-ator from Pennsylvania.

Mr. SPECTER. I ask unanimous con-sent that I might proceed in morningbusiness for a period not to exceed 15minutes.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

THE NOMINATION OF RUTH BADERGINSBURG

Mr. SPECTER. Mr. President, I amgoing to use this lull in the proceedingsto make my statement on the nomina-tion of Judge Ginsburg, which is sched-uled for debate on Monday. But I wantto use the time now.

An affirmative vote for Judge RuthBader Ginsburg to be Associate Justiceof the Supreme Court of the UnitedStates is not as easy for me as it is formost, if not all, of my Senate col-leagues. While I have no doubt abouther being eminently well qualified forthe position, I am greatly concernedover the course of the confirmationprocess that not enough questions havebeen answered at the confirmationhearings. At her hearings before theJudiciary Committee, Judge Ginsburgdeclined to answer most of the sub-stantive questions which the membersaddressed to her.

I believe, and I think many of theother Senators believe, that she shouldhave answered more questions. I amconcerned that her confirmation, onthe heels of previous confirmations,only leads the Senate further down theroad of unwelcome precedent for futurenominations.

Until 1925, no nominee had ever ap-peared before the Senate or any of itscommittees to testify. Testimony by anominee did not become routine untilJustice Felix Frankfurter was nomi-nated in 1939, and even into the 1940's anominee to the Supreme Court refusedto appear before the committee to tes-tify and was confirmed.

For years, nominees took a consist-ent position that they would discussonly their records and their back-ground, but they declined to discusslegal philosophy either in the particu-lar or in the abstract. Despite the factthat the Supreme Court became moreand more active in decisions which af-fected all Americans through the 1950'sand 1960's, still, nominees to the Courtdeclined to answer questions about ju-dicial philosophy.

My service on the Judiciary Commit-tee began in 1981, and I have beenthrough eight Supreme Court con-firmation hearings. As we have pro-ceeded, more and more we began ques-tioning nominees about judicial philos-ophy. The nominees have had to tread

July 30, 1993 CONGRESSIONAL RECORD—SENATE 17963a fine line as we developed our inquir-ies to delve more deeply into a nomi-nee's judicial philosophy.

Given the fact that no one wants toappear before a judge who has predeter-mined the case, it is understandablethat nominees have not and should notdiscuss their views on particular caseswhich may come before the Court. Atthe same time, nominees generallyhave discussed their opinions on cer-tain well-settled issues or on fun-damental principles.

A major turning point came duringthe hearings on Judge Robert Bork.Members of the Judiciary Committeeengaged in detailed examination ofJudge Bork's judicial philosophy onmany issues such as free speech, judi-cial review, and the proper means of in-terpreting the Constitution. JudgeBork did not discuss his position inspecific cases that might come beforethe Court, but he gave the committeeand the Senate a detailed look at hisjudicial philosophy.

Among other nominees in the 1980's,there was a wide degree of difference onhow far they would go in answeringquestions. For example, Justice O'Con-nor expressly endorsed the death pen-alty as an appropriate sanction. Shehad previously voted for it as an Ari-zona legislator. Justice Kennedy re-fused to give his view on the death pen-alty.

Judge Souter endorsed the death pen-alty as constitutional, even though he,like Justice Kennedy, had not ex-pressed a view before the hearings.

Against this background of evolvingstandards, Judge Ginsburg answeredfew questions. For example, I asked herabout her concurring opinion in a suitby Members of Congress under the WarPowers Act. From this point, I tookthe inquiry to the next level and in-quired about Congress' authority to de-clare war.

When I asked Judge Ginsburg wheth-er the Korean military engagementwas a war as contemplated by the con-stitutional provision giving Congresssole authority to declare war, she re-sponded that she could not answer thequestion without briefing and oral ar-gument.

Obviously, no case is going to comebefore the Supreme Court involving theKorean war, and it seemed to me thatthis question required only a common-sense response regarding a matterwhich had arisen during her youngadulthood. It was an appropriate ques-tion for Judge Ginsburg to give ussome insight into her approach to animportant historical event. She couldhave answered without prejudging acase which would actually come beforethe Court.

Judge Ginsburg also refused to an-swer questions regarding her approachto the propriety of Supreme Court deci-sions overturning longstanding statu-tory interpretations that Congress had

implicitly accepted. I asked her abouther view of the Supreme Court actingas a superlegislature and SupremeCourt activism as a revisionist court inchanging the law and making new lawin two major cases in the late 1980's.One was Wards Cove, a 5-4 decisionhanded down in 1989 which overruled aunanimous Supreme Court decision inthe Griggs case in 1971 interpreting the1964 Civil Rights Act. Despite the factthat Congress had let the Griggs deci-sion stand for 18 years, the SupremeCourt proceeded to change the law inWards Cove. When I inquired about herview of the propriety of that kind of ju-dicial activism, she declined to answer.

Similarly, she declined to respond tomy inquiry involving the decision ofthe Supreme Court in Rust versus Sul-livan which upheld the Department ofHealth and Human Services' 1988 regu-lation imposing the gag rule. That ruleprohibited counselors from telling cli-ents about the opportunities for abor-tion where Federal funds were involvedunder title X of the Family PlanningAct of 1970.

For some 18 years, that kind of coun-seling was permitted, but in the face of18 years of congressional acceptance ofthe regulation, the executive changedthe regulation and the Supreme Courtupheld this change by a 5-4 vote.

My inquiries regarding these twocases related to judicial philosophy ona nominee's deference to Congresswhen longstanding interpretations of astatute, one by the Supreme Court andthe other by the executive branch,which had received longstanding con-gressional approval, were overturnedby the Supreme Court of the UnitedStates,

I was not asking Judge Ginsburgabout how she would vote in any par-ticular case, but more broadly abouther approach to judicial respect forcongressional intent in such caseswhere Congress, in effect, acts inten-tionally by not acting at all. She de-clined to answer those questions.

These are only a few examples ofJudge Ginsburg's refusal to discuss herjudicial philosophy. While she wasmore forthcoming than recent nomi-nees about her support for the right ofa woman to make reproductive choices,she declined to answer many questionson a wide variety of subjects.

Mr. President, there is no doubtabout Judge Ginsburg's overall com-petency. She has an outstanding lawschool record, having attended Harvardand Columbia, being a member of theLaw Review at both schools. She has asuperb record as a practicing lawyer,having argued cases before the Su-preme Court of the United States andwon many landmark decisions. Herwork as a jurist over 13 years has beensimilarly outstanding.

One of her strong traits has been towrite brief opinions, which is ratherunusual for a judge or a Justice. As she

articulates it, she likes to keep it tightand right. Some of her opinions resem-ble Justice Oliver Wendell Holmes', aSupreme Court Justice noted for brev-ity in opinions, in clarity and brevity.In fact, it takes a long time to write ashort opinion.

So her record is outstanding, and forthe reason of her record and her pros-pects as a Supreme Court nominee, Isupport her nomination for the Su-preme Court of the United States. Butin voicing that support, I articulate areservation and a concern about thelimited number of questions which sheanswered. In fact, I believe the Senateand the Judiciary Committee are re-sponsible for setting the stage with somuch approval in advance that hernomination was realistically assured.

We have seen, as a matter of prac-tice, that the nominees to the SupremeCourt of the United States answerabout as many questions as they reallyhave to answer. When Chief JusticeRehnquist was up for confirmation forthe Chief Justice's position, for whichhe was ultimately confirmed on a voteof 65 to 33, and there was a realisticquestion about his confirmation tothat position, he answered very signifi-cant questions saying that the Con-gress of the United States did not havethe authority to take away the juris-diction of the Supreme Court on firstamendment issues. That, to me, Mr.President, is a very important subject.If we do not establish the supremacy ofthe Court to interpret constitutionalissues, then our entire constitutionalstructure is in doubt.

Judge Ginsburg did answer the ques-tion that she supported Marbury versusMadison, which established the su-premacy of the Court on constitutionalissues, but she would not answer thequestion as to whether the Congresscould take away the jurisdiction of theSupreme Court to hear cases under theequal protection clause of the 14thamendment. The equal protectionclause of the 14th amendment is vitalfor individual rights. Judge Ginsburg,as a lawyer, established her reputationon cases involving equal protection ofthe law. That has been a principalsource of her interest in advocacy andthe issue which she has pushed: wom-en's rights.

But if the Congress has the authorityto take away the jurisdiction of theSupreme Court, the Court could notpass on those issues. And, in fact, wewould not have constitutional protec-tions. That is why I pressed for an an-swer from Judge Ginsburg. I did notget the answer.

It is my concern that we have slidback from the scope of questions towhich we have received answers fromJudge Bork who answered a greatmany, as I think realistically he hadto, to have a chance for confirmation,although he was not confirmed.

My reading of the record shows JudgeGinsburg answered fewer questions

17964 CONGRESSIONAL RECORD—SENATE July 30, 1993than Justice David Souter, than Jus-tice Anthony Kennedy, than JusticeSandra Day O'Connor. Only JusticeAntonin Scalia answered fewer ques-tions than Judge Ginsburg.

Judge Ginsburg did concede that theopinion of the Senate and the voice ofthe Senate in confirmation stands onan equal footing to the opinion of thePresident in making the nomination.But the Senate cannot discharge thatconstitutional authority unless it haslatitude to receive answers to its ques-tions.

My judgment, Mr. President, on anominee depends on a balancing of hisor her record before the hearings—aca-demic, professional record—and thenominee's willingness to be responsiveand the substance of those responses.Despite my substantial reservations onthe responsiveness of Judge Ginsburg, Iam voting for her because of her out-standing educational, professional andjudicial qualifications.

I hope that it will not be necessary toreject nominees in the future becauseof lack of responsiveness to Senators'questions, but I do express the reserva-tion, the caveat, that it may becomenecessary as the only way to establishthe appropriate balance to enable theSenate to perform its constitutionalduty on advise and consent.

Mr. President, I wish to acknowledgethe outstanding assistance given to mein preparation of the hearings them-selves by my former law partner, MarkKlugheit, of the Dechert, Price &Rhoads firm in Philadelphia, and myJudiciary Committee chief counsel,Richard Hertling.

Mr. Klugheit came to Washington toserve as counsel for the ImpeachmentCommittee on Judge Alcee Hastingsand then returned as an unpaid volun-teer for the preparation of hearings onJudge Ginsburg. Mr. Klugheit assem-bled a team of summer associates fromDechert, Price & Rhoads. And I thankJennifer Arbittier, Scott Rose,Silvestre Fontes, Rachel Nosowsky fortheir research assistance, and also, inmy Judiciary Committee office, AlisonSerxner who assisted Mr. Hertling. Itwas a voluminous task to read morethan 300 published opinions, a largenumber of unpublished opinions, andsome 75 articles which Judge Ginsburghad written to prepare for the ques-tioning and evaluation of the nominee,and I thank those individuals for theirassistance.

Mr. President, I ask unanimous con-sent that the appendix to my writtenstatement to which I earlier referred tobe printed in the RECORD.

There being no objection, the appen-dix was ordered to be printed in theRECORD, as follows:

APPENDIX—EXAMPLES OF JUDGE RUTH BADERGINSBURG's REFUSALS TO ANSWER OR NON-RESPONSES TO QUESTIONS ASKED BY MEM-BERS OF THE JUDICIARY COMMITTEE DURINGHER CONFIRMATION HEARINGS, JULY 20-JULY22,1993The CHAIRMAN. SO what did you mean when

you said, Judge, in the Madison lecture thatit ended race discrimination in our country,perhaps a generation before State legislatorsin our southern States would have budged onthe issue? Are you saying that the Nation it-self may have been in sync with Brown andthe Court not that far ahead of the Nation,and it was only that part of the country?

Judge GINSBURG. Well, the massive resist-ance was concentrated in some parts of thecountry, that there was discriminationthroughout the country I think is undoubt-edly the case. But there was certainly a posi-tive reaction in Congress, not immediately,but first the voting rights legislation startedin the fifties, and then the great civil rightslegislation of 1964. The country was movingtogether.

The CHAIRMAN. It was a decade later. Mytime is up, Judge. You have been very in-structive about how things have moved, butyou still haven't—and I will come back toit—squared for me the issue of whether ornot the Court can or should move ahead ofsociety a decade, even admittedly in theBrown case, it was at least a decade ahead ofsociety. The Congress did not, in fact, reactin any meaningful way until 10 years later,and so it moved ahead.

One of the things that has been raised, theonly question that I am aware of that hasbeen raised, not about you personally, butabout your judicial philosophy in the popu-lar press and among those who follow this, ishow does this distinguished jurist distin-guish between what she thinks the Court isentitled to do under the Constitution andwhat she thinks it is wise for it to do. Whatis permitted is not always wise.

So I am trying to get—and I will fish for Itagain when I come back—I am trying to geta clear distinction of whether or not youthink, like in the case of Brown, where itclearly did step out ahead of where the Na-tion's legislators were, whether that was ap-propriate. If it was, what do you mean by itshould not get too far out ahead of society,when you talked about that in the Madisonlectures?

But I will give it another try. I think younot only make a great Justice, you are goodenough to be confirmed as Secretary ofState, because State Department peoplenever answer the questions fully directly, ei-ther.

Senator KENNEDY. Well, we have over-turned those decisions now in the CivilRights Act of 1991. I am asking you whetheryou are willing to express an opinion aboutthose cases that were overturned since itwon't come back up to you and since now wehave legislated in those particularly cases.

Judge GINSBURG. I don't want to write aLaw Review commentary on the SupremeCourt's performance in different cases. Ithink the record of what went on in thelower courts, in some of those instances theSupreme Court's position was contrary tothe position that had been taken in thelower Federal courts, and in the Ward's Covecase, in the Patterson case. And it is alwayshelpful when Congress respond to a questionof statutory interpretation, as it did in thiscase, to set the record right.

Now, sometimes I spoke of the PregnancyDiscrimination Act and Title VII. I thinkthat Congress was less clear than it could

have been the first time around. Maybe thatwasn't apparent until the case came up. Con-gress reacted rather swiftly and said, yes,discrimination on the ground of pregnancy isdiscrimination on the ground of sex, andTitle VII henceforth is to be interpreted thatway.

So I think it is a very healthy thing. It ispart of what I called the dialogue, particu-larly on questions of statutory interpreta-tion; that if the Court is not in tune with thewill of Congress, that Congress doesn't let itsit and makes the necessary correction, thatcan be even on a constitutional matter—andI referred to the Simka Goldman case yester-day when Congress fulfilled the Free Exer-cise Clause more generously than the Courthad.

Senator METZENBAUM. My question to youis: How would you view an antitrust casewhere the facts indicated that there hadbeen anti-competitive conduct but the de-fendant attempted to justify it based on aneconomic theory such as business efficiency?

Judge GINSBURG. I am not going to be anymore satisfying to you, I am afraid, than Iwas to Senator Specter. I can answer anti-trust questions as they emerge in a case. Isaid to you yesterday that I think the onlycase where I addressed an antitrust questionfully on the merits was in the Detroit news-paper case where I think I faithfully—or atleast I attempted to faithfully interpret theNewspaper Preservation Act and what Con-gress meant in allowing that exemption fromthe antitrust laws.

Senator METZENBAUM. Indeed you did.Judge GINSBURG. Antitrust, I will confess,

is not my strong suit. I have had, as youpointed out, some half a dozen—not manymore—cases on this court. I think I under-stand the consumer protector, the entre-preneur, individual decisionmaking, protec-tive trust of those laws, but I can't give youan answer to your abstract question anymore than I could—I can't be any more satis-fying on the question you are asking methan I was to Senator Specter on the ques-tion that he was asking.

If you talk about my particular case—andit was a dissent. There was a division in thecourt on how to interpret that statute. Ithink I tried to indicate what my approach—I think that case indicates what my ap-proach is in attempting to determine whatCongress meant. But I can't, other than say-ing I understand

Senator DECONCINI. Let me put it this way,Judge: Do you think there is any merit to aprocess within the judicial branch of govern-ment, which would permit the removal of ajudge?

In other words, what if a constitutionalamendment set up or gave authority to thejudicial branch to set up procedures wherecomplaints could be heard? A judge wouldhave an opportunity to respond and to havea hearing and to appeal the hearing, andwhat have you, and that the Supreme Courtor somebody within the judicial branchcould, in fact, dismiss the judge. Have yougiven that any thought?

Judge GINSBURG. I understand that theKastenmeier Commission that has beenlooking into the discipline and tenure ofjudges, has come out with a preliminary 'draft of its report that takes a careful—thatcommission has been operating for sometime and it is supposed to have a very broadcharter to take a careful look at all theseareas.

I will read the final report when it comesout with great interest, but I don't feelequipped to address that subject.

July 30, 1993 CONGRESSIONAL RECORD—SENATE 17965Senator DECONCINI. Let me ask you this: Is

it offensive to you, if the judiciary had au-thority to discipline judges and that dis-cipline could also include dismissal?

Judge GINSBURG. We already have an in-house complaint procedure, as you know.

Senator DECONCINI. Yes, I do.Judge GINSBURG. And I think that has

worked rather well. It has never come to thepoint in all my 13 years there has been an in-stance calling for removal.

Senator DECONCINI. My problem, Judge, iswhat do you do with a convicted judge?Wouldn't it be appropriate for the judiciaryto have a process that they could expel thatjudge? I mean I am giving you the worst ofall examples. I am not talking about the liti-gant who is unsatisfied, doesn't like the rul-ing of the judge and, thereby, files a com-plaint as to moral turpitude of the judge,and then you have a hearing on that. I amtalking about something that is so dramaticas a felony conviction of a judge.

Judge GINSBURG. Senator, I appreciate theconcern that you are bringing up, and it isn'thypothetical, because there are judges whoare in that situation. They are rare, one ortwo in close to a thousand.

Senator DECONCINI. I think there are two.Judge GINSBURG. SO I appreciate the prob-

lem. When I was asked before about camerasin the court room, I was careful to qualifymy own view, saying I would, of course, givegreat deference to the views of my col-leagues on this subject, and there is an ex-periment going on now in the Federal courtson that subject.

Here I don't even feel comfortable in ex-pressing my own view, without the view ofthe U.S. Judicial Conference on this subject.I know that the judges are going to study theKastenmeier report, and they are going toreact to it. I can just say that I appreciate itis a very grave problem.

Senator LEAHY. Does that mean that theFree Exercise Clause and the EstablishmentClause are equal, or is one subordinate to theother?

Judge GINSBURG. I prefer not to address aquestion like that; again, to talk in grandterms about principles that have to be ap-plied in concrete cases. I like to reason fromthe specific case and not

Senator LEAHY. Let me ask you this: Inyour view of the Supreme Court today—or doyou have a view whether the Supreme Courthas put one in a subordinate position to theother?

Judge GINSBURG. The two clauses are onthe same line in the Constitution. I don't seethat it is a question of subordinating one tothe other. They both have to be given effect.They are both

Senator LEAHY. But there are instanceswhere both cannot be upheld.

Judge GINSBURG. Senator, I would prefer toawait a particular case and

Senator LEAHY. I understand. Just trying,Judge. Just trying.

Senator SIMON. If I could get you to be alittle more specific here, if I can ask, not incommenting on the substance of the Alvarezcase—incidentally, he was tried in theUnited States and not found guilty—butwere you at all startled, when you heardabout the results of the Alvarez case?

Judge GINSBURG. If I may, Senator, I wouldnot like to comment on my personal reac-tions to that case. I think I told you whatmy view is on how U.S. officials should be-have, and I would like to leave it at that.This was a decision of the United States Su-preme Court that you have cited, and I havereligiously tried to refrain from commenting

on a number of Court decisions that havebeen raised in these last couple of days.

Senator FEINSTEIN. Thank you, Mr. Chair-man.

Just to try to pursue that a little bit fur-ther. Judge Ginsburg, could you talk at allabout the methodology you might apply,what factors you might look at in discussingSecond Amendment cases should Congress,say, pass a ban on assault weapons?

Judge GINSBURG. I wish I could, Senator,but all I can tell you is that this is anamendment that has not been looked at bythe Supreme Court since 1939. And apartfrom the specific context, I really can't ex-pound on it. It is on area in which my courthas had no business, and one I had no ac-quaintance as a law teacher. So I really feelthat I am not equipped beyond what I al-ready told you, that it isn't an incorporatedamendment. The Supreme Court has notdealt with it since 1939, and I would proceedwith the care that I give to any serious con-stitutional question.

Senator MOSELEY-BRAUN. SO I have twoquestions. The first is, in a situation likethis, if the property owners challenge thegovernment action as a taking of their prop-erty, what principles should the SupremeCourt look to in evaluating that claim?

Judge GINSBURG. Senator, the question hassome kinship to the one that Senator Pres-sler raised about the wetlands. It is justevolving. There is a clear recognition that atsome point a regulation does become a tak-ing. When that point is reached is somethingto be settled for the future.

We do know that, as I said in the Lucascase, when the value of that property is to-tally destroyed as a result of the regulation,that is indeed a taking and there must becompensation for it. Reliance is certainlyone of the factors that goes into the picture.

As I say, this is just a developing area andit is still evolving and I can't say any moreabout it than is reflected in the most recentprecedents in the Nolan case and in the re-cent Lucas case of the Court. But there cer-tainly is sensitivity to the concerns. One,the regulations for the benefit of the commu-nity, which you mentioned, and the other isthe expectation, the reliance of the privateperson, and those two will have to be bal-anced in the future cases coming up. But thisis an area that is very much evolving now,and I can't say anything more than I havesaid about it so far.

Senator HATCH. But in the InternationalFunding case, you cited Harris v. McRae fa-vorably in support of a distinction you drewbetween funding restrictions that are per-missible and those that are not. Irrespectiveof your views on the policy of abortion fund-ing, do you agree that Mayer and Harris,those two cases, were decided correctly?

Judge GINSBURG. I agree that those casesare the Supreme Court's precedent. I have noagenda to displace them, and that is aboutwhat I could say. I did express my views onthe policy that is represented. That is notsomething that anybody has elected me tovote on.

Senator THURMOND. One vocal critic of thisdecision said that the Supreme Court hasnow created an entirely new constitutionalright for white people. Judge Ginsburg, doyou believe this to be an accurate assess-ment of the Shaw decision? And if confirmed,how will you approach challenges to reappor-tionment plans under the Equal ProtectionClause?

Judge GINSBURG. Senator Thurmond, theShaw case to which you referred was re-turned to a lower court. The chance that it

will return again to a higher court is hardlyremote. It is hardly remote for that verycase. It is almost certain for other cases likeit. These are very taxing questions. I thinkthat the Supreme Court has redistrictingcases already on its docket for next year, sothis is the very kind of question that wouldbe injudicious for me to address.

Senator GRASSLEY. Well, there wouldn't beany question about separation of powers pro-tecting Members of Congress from applica-bility of criminal laws against this. Whatprincipal distinction can there be made ofhaving employment laws or civil rights lawsapplied to Congress?

Judge GINSBURG. I think if you ask thecounsel to the Senate, who argued very effec-tively in a number of Speech or DebateClause cases before us, for a brief on thatsubject, that office would be best qualified toaddress it.

Senator GRASSLEY. Well, I believe beforelong you will be addressing it sometime. Ob-viously that would keep you from respondingto specific question, but

Judge GINSBURG. If and when, I would havethe benefit of the wonderful brief, I hope; thebriefs on both sides. But that is the dif-ficulty that I confront in this milieu. I am soaccustomed—and as a judge, it is the onlyway I can operate, on a full record, withbriefs, and not making general statementsapart from a concrete case for which I amfully prepared with the arguments that par-ties make on both sides.

Senator BROWN. I wanted to cover one lastarea, and it may be an area you would prefernot to explore. If you do, I would certainlyunderstand.

I believe earlier on Senator Cohen and oth-ers had brought up a question with regard tohomosexual rights. I would not expect you torule on something or advise on somethingthat may well involve a case. But there is aquestion I thought you might clear up for usthat I think has some relevance here.

The Equal Protection Clause, as we haveexplored it this afternoon, deals, in effect,requiring sex-blind standards with regard toGovernment action or legislation, or maywell deal in that area. That relates to classesof people; in this case, males and females.Obviously there are other classes.

In the event we are dealing with forms ofbehavior—and I appreciate that is not a fore-gone conclusion with regard to homosexuals.That is open to debate whether or not it is aclass of people or forms of behavior. But inthe event we are dealing with forms of be-havior, would they come under the provi-sions of the Equal Protection Clause?

Judge GINSBURG. Senator Brown, I am soglad you prefaced this by saying you wouldunderstand if I resisted a response, becausethis is an area where I sense that anything Isay could be taken as a hint or a forecast onhow I would treat a classification that isgoing to be in question before a court, andultimately the Supreme Court. So I think itis best that I not do anything that could beseen, be used as a prediction of how I mightvote with regard to that classification.

Senator COHEN. What about sexual orienta-tion?

Judge GINSBURG. Senator, you know thatthat is a burning question that at this verymoment is going to be before the Court basedon an action that has been taken. I cannotsay one word on that subject that would notviolate what I said had to be my rule aboutno hints, no forecasts, no previews.

Senator PRESSLER. Are you uncomfortablethat the Constitution's Bill of Rights doesnot extend to Native Americans?

17966 CONGRESSIONAL RECORD—SENATEJudge GINSBURG. I can't express my per-

sonal view on that subject. I know that thereare many people who care deeply about theconcept of tribal sovereignty. I am not amember of one of those communities and, asa judge, I will do my best to apply faithfullyand fairly the policy that Congress sets withrespect to tribal governance.

Mr. SPECTER. I thank the Chair andyield the floor.

Mr. JEFFORDS. Mr. President, I askunanimous consent that I may be ableto proceed for a period of time not toexceed for 5 minutes to introduce abill.

The PRESIDING OFFICER. Withoutobjection, it is so ordered. The Chairrecognizes the Senator from Vermontfor 5 minutes.

(The remarks of Mr. JEFFORDS per-taining to the introduction of S. 1327are located in today's RECORD under"Statements on Introduced Bills andJoint Resolutions.")

Mr. JEFFORDS. Mr. President, Ithank the Chair and I yield the floor.

The PRESpiNG OFFICER. TheChair recognizes the Senator fromMontana.

Mr. BURNS. Mr. President, I askunanimous consent that I may proceedfor 5 minutes as if in morning businessto introduce a bill.

The PRESIDING OFFICER (Mr.FEINGOLD). Without objection, it is soordered.

The Senator is recognized for up to 5minutes.

(The remarks of Mr. BURNS pertain-ing to the introduction of S. 1328 arelocated in today's RECORD under"Statements on Introduced Bills andJoint Resolutions.")

Mr. BURNS. I thank the Chair andyield the floor.

Mr. President, I suggest the absenceof a quorum.

The PRESIDING OFFICER. Theclerk will call the roll.

The legislative clerk proceeded tocall the roll.

Mr. GRASSLEY. Mr. President, I askunanimous consent that the order forthe quorum call be rescinded.


Mr. GRASSLEY. Mr. President, I askunanimous consent to speak as inmorning business for 10 minutes.


REINVENTING GOVERNMENTMr. GRASSLEY. Mr. President, I rise

early this afternoon to present the firstof several statements that I am goingto make over the next few weeks on anissue that is really foremost in theminds of many: Reinventing govern-ment. It has also been foremost in theminds of famous authors, DavidOsborne and Ted Gaebler in their now-celebrated book entitled "ReinventingGovernment." The term reflects a ne-cessity—brought on by taxpayer ani-

mosity—for the Government to becomemore responsive and more effective inits delivery of Federal services. Tax-payer hostility is a result of not justpoor service delivery under our presentsystem, but also deals very much withthe bottom line cost—maybe evenmore so.

The challenge to advocates of re-inventing government is to reform theFederal bureaucracy so that it per-forms better, is less wasteful, and al-lows the decisionmaking, or ownershipof Government, to occur closer to thecitizenry. In theory, at least, every-thing, save the Constitution, should beon the table, and it would not hurt ifwe were on the table either in the re-spect of always reviewing, to a consid-erable degree, whatever we do.

The macro benefits to the countrywould be enormous: More effectiveservice delivery, less Governmentspending, a need for fewer taxes, and abuild-down of the national debt.

All that stands between these worthyobjectives and the present system is areinvention of Dunkirk. Somehow, anenormous, countervailing political willmust build. This, alone, can turn backthe dynamic of growing governmentcaused by special interests feeding offof the present, failing structure. Thepeople want such change. It is up to usto deliver.

As I proceed with my floor state-ments between now and the August re-cess, together with others of my col-leagues, I intend to advance such anagenda, beginning with the principlesand standards for an effective reinven-tion. I intend to draw on the insights inOsborne and Gaebler's book, on myown experiences attempting to re-invent the Defense and Justice Depart-ments during the 1980's, on such man-agement legends as W. EdwardsDeming and Peter Drucker, and onmany others.

In essence, this agenda would be anextension of my defense reform effortsof the 1980's, only this time applied toall of Government.

I would especially like to commendthe work and leadership of SenatorROTH of Delaware, Mr. President. Sen-ator ROTH has advanced the cause ofreinventing Government in the Senate,and in a bipartisan way, for manyyears, even before this administrationcommitted itself to reinvention. Theadministration's stated commitmentgives us the foundation for true bipar-tisan cooperation. Many of us on thisside of the aisle have long advocatedfundamental reform of the FederalGovernment. We look forward to theopportunity to form a bipartisan coali-tion for constructive change.

The centerpiece of Senator ROTH'S ef-forts has been two reinvention bills,each of which I have cosponsored.

One of the bills has passed the Con-gress already—the Government Per-formance and Results Act. This act is a

July 30, 1993model for setting performance goals forFederal programs so that effectivenesscan be measured and monitored.

A second bill, the Reinventing Gov-ernment Act, would establish an entitysimilar to the Base Closure Commis-sion that would tackle the tough issuesof which programs and agencies to re-form and how.

In my view, this approach hasworked effectively. It has worked onperhaps the thorniest issue of all facinga representative institution such asours: the closing of military bases inour States and districts.

If Government indeed is to be re-invented, and democracy revitalized,this law would give us the best chanceof succeeding, in my view. Again, thatis something that we need to commendthe Senator from Delaware [Mr. ROTH]for his leadership in this area.

I should also commend the efforts ofthe President and the Vice President.Under their leadership, the seed hasbeen planted for real Government re-form at the highest levels of our Gov-ernment. In my view, if it took Nixonto go to China, it will take Democratsto reform the welfare state. I havelived and practiced under this adage: Ittook a CHUCK GRASSLEY and other Re-publicans to reform the Defense De-partment and to lead the way to thefreeze of the Defense budget in the1980's. I believe in this principle, and Ican testify to its effectiveness.

Mr. President, I would like to helpdefine what it means when we use theterm reinventing government. Consist-ent with any organizational reform orturnaround, we must begin with fun-damental questions: What is it that wedo now, and what is it that we shouldcontinue to do?

In the case of reforming Government,this means asking and, of course, an-swering the following three questionsabout those things the Federal Govern-ment now does:

First of all, what functions shouldthe Federal Government continue to doas it does now; that is, rowing? That iswhat I call rowing, like rowing a boat.

Second, what functions should theFederal Government no longer do, butrather maintain a guiding hand in;that is, steering? That is what I callsteering, like steering an automobile.

Third, what functions should theFederal Government turn over to Stateor local governments, to communities,to foundations, or to private industry;that is, drydocking, I call it, to coin aphrase.

Answering these three questions willcreate three categories for Federal pro-grams and functions. I would like tolook at them separately.

First, there is rowing. These are pro-grams that the Federal Governmentmust do. One example would be admin-istering to the national defense. This isa function that the Government mustdo itself to provide for the collectivedefense of the Nation.


Congressional HecordPROCEEDINGS AND DEBATES OF THE 103d CONGRESS

FIRST SESSIO]

VOLUME 139—

AUGUST 2, 1993 TO AUGUST 5, 1993

(PAGES 18067 TO 19530)


69-059 0—97 Vol. 139 (Pt. 13) 1

August 2, 1993 CONGRESSIONAL RECORD—SENATE 18123now going to have to defend in a fairway. With what he himself identifies asmore direct control over decisionmak-ing, that could result in the NationalEndowment for the Humanities sharplyveering off course.

Dr. Hackney, you have your work cutout for you, and I am quite concernedat this moment of who this good, intel-ligent, scholarly figurehead will be.Will he be the person who arbitrarilyrestricted free speech and then made achange? Or will he be the stalwart whodirects in a fair and balanced way themoneys of this great institution?

Those are the questions at hand, andin the coming weeks and months, I amsure we will know because I expect thedoctor to be confirmed. But I will tellyou that he is not a strong and decisivecaptain. He is a man who has allowedhis ship to be blown off course by thewinds of change and not to remain astalwart defender of constitutional andbasic American principles and rights.

Mr. President, I suggest the absenceof a quorum.

The PRESIDING OFFICER. Theclerk will call the roll.

The bill clerk proceeded to call theroll.

Mr. DOLE. Mr. President, I ask unan-imous consent that the order for thequorum call be rescinded.

The PRESIDING OFFICER (Mr.KERREY). Without objection, it is so or-dered.

Mr. DOLE. I ask unanimous consentto proceed as if in morning business.


SALUTE TO EWING KAUFFMANMr. DOLE. Mr. President, a rags-to-

riches success story; baseball; a devo-tion to the philosophy of neighborhelping neighbor; what do these havein common? All three are a unique partof the American culture. And all threewere also part of the uniquely Amer-ican life of Ewing Kauffman, whopassed away Saturday in KansasCity, MO.

In 1950, Ewing Kauffman started apharmaceutical business in the garageof his home. And over the years, Mar-ion Laboratories grew from a one-manoperation to a $1 billion corporation.

Mr. Kauffman said the reason behindhis business success could be found inhis motto—"Those who produce,share." Mr. Kauffman never used theword "employee," referring to every-one—from vice presidents, to secretar-ies, to janitors as "associates."

In 1969, Mr. Kauffman earned the af-fection of the people of Missouri andKansas, when he purchased a newmajor league baseball franchise andbrought it to Kansas City. And for thepast 24 years, the Kansas City Royalshave been one of the most successfulfranchises in baseball.

Under Mr. Kauffman's ownership, theRoyals won six American League West-

ern Division titles and made two tripsto the World Series, winning the WorldChampionship in 1985.

The Royals were also winners off thefield, as well. Mr. Kauffman knew thathis team really didn't belong to him; itbelonged to the people of the KansasCity area—in fact, for that matter, allthe Midwest. And his leadership en-sured that the Royals were also avail-able to make appearances on behalf ofworthy causes and to reach out toyoung people.

Young people were also the focus ofmany of Mr. Kauffman's philanthropicefforts. His Kauffman Foundation fi-nanced countless projects, including aprogram to teach children how to re-sist peer pressure at the age when theyare most vulnerable to involvementwith drugs.

Mr. Kauffman also made a life-chang-ing promise to over 1,000 high schoolfreshmen in Kansas City, KS, and inhis hometown of Westport, MO—apromise that he would pay the entirecost of their college or vocationaltraining if they steered clear of drugs,alcohol, teenage parenthood, and re-ceived their high school diploma.

Mr. President, when Mr. Kauffmanwas diagnosed with bone cancer, hetypically did not think of himself; hethought of others; and he established atrust which would keep the Royals inKansas City after his death.

Ewing Kauffman is survived by hiswife, Muriel, three children, ninegrandchildren, and three great grand-children. He is also survived by count-less men, women, and children whoselives are better because of the leader-ship and generosity of this remarkableAmerican.

SALUTE TO CONGRESSMAN PAULHENRY

Mr. DOLE. Mr. President, I knowthat all Members of the Senate join mein extending our sympathies to thefamily, friends, colleagues, and con-stituents of Congressman PAUL HENRYof Michigan.

Congressman HENRY passed awaySaturday after a courageous fightagainst brain cancer.

Regarded by many as one of the ris-ing stars of the Republican Party,PAUL HENRY made a career of making adifference in the lives of others.

As a Peace Corps volunteer, he madea difference in the lives of the people ofEthiopia and Liberia.

As a political science professor, hemade a difference in the lives of hisstudents.

And as a 5-year member of the Michi-gan State Legislature and a five-termMember of Congress, PAUL HENRY madea difference for Michigan and America.

Mr. President, I was proud to callCongressman HENRY my friend, andknow that I am just one of many inthis Chamber who will miss this trulyoutstanding public servant.

I suggest the absence of a quorum.The PRESIDING OFFICER. The

clerk will call the roll.The bill clerk proceeded to call the

roll.Mr. HELMS. Mr. President, I ask

unanimous consent that the order forthe quorum call be rescinded.


NOMINATION OF RUTH BADERGINSBURG

Mr. HELMS. Mr. President, it hadbeen my tentative inclination prior tothis past weekend to vote to confirmRuth Bader Ginsburg to serve on theU.S. Supreme Court despite disagree-ment with some of her declarationsabout constitutional matters and othermatters. I have a small habit which Ihave not been able to break, I am notinclined to break, and I have not triedto break, that is, on each major nomi-nation to come before the Senate I as-semble all available information aboutthe nominee including testimony be-fore the committee hearing of his orher nomination.

I did that this past weekend. I spenta part of the weekend reviewing var-ious documents regarding Mrs. Gins-burg, and never have I been more dis-appointed in a nominee. This lady,whom I have regarded as a pleasant, in-tellectual liberal is, in fact, a womanwhose beliefs are 180 degrees in opposi-tion to some fundamental principlesthat are important not only to me but,I believe, to the majority of otherAmericans as well.

Therefore, it would be hypocritical ofme to keep silent about Mrs. Gins-burg's beliefs, let alone her nominationto be quietly confirmed by the Senate,like a ship passing in the night.

I confess great disappointment thatthe Senate Judiciary Committee inconducting the hearing on Mrs. Gins-burg's nomination did not press her ona number of matters—for example, heroutrageously simplistic and callous po-sition on abortion. The lady used agreat deal of doubletalk and, sad tosay, the Judiciary Committee let herget by with it.

Mr. President, I did not find one syl-lable of challenge by any member ofthe Judiciary Committee to this out-rageous oversimplification by a nomi-nee whose demeanor appeared to be oneof amused tolerance of Senators tootimid to ask questions that needed tobe asked. Why, Mr. President, in thename of God did someone not ask,"But, Mrs. Ginsburg, what about thatunborn innocent and helpless child'sright to be left alone, that child who isabout to be destroyed because of spe-cious reasoning by people like RuthBader Ginsburg?"

Mrs. Ginsburg also made such un-challenged declarations as that theHyde amendment is unconstitutional;

18124 CONGRESSIONAL RECORD—SENATE August 2, 1993

that the implication—that went un-challenged—was that, as a member ofthe Supreme Court, she is likely to up-hold the homosexual agenda; and,three, the States should be required topay for abortions.

There were other such remarkableassertions. But the able Senator fromPennsylvania, Mr. SPECTER, did put itaptly when he said:

I'm not suggesting that Judge Ginsburgwill be defeated, or that she should be, but Iam suggesting that her coronation in ad-vance is irresponsible.

And that is putting it mildly, Mr.President.

Let me emphasize, in conclusion, Mr.President, that I hold no personal ani-mus for Mrs. Ginsburg. But based onwhat she has said, and what she clearlymeant, I cannot support her nomina-tion. She will be confirmed, yes. And Imay be the only Senator opposing her.But I pray that as a sitting Justice ofthe Supreme Court, she will rethinksome of her positions.

Mr. President, I ask unanimous con-sent that two items be printed in theRECORD.

There being no objection, the mate-rial was ordered to be printed in theRECORD, as follows:

COALITIONS FOR AMERICA,Washington, DC, July 23,1993.

To: Interested parties.From: Thomas L. Jipping, J.D., Legal Affairs

Analyst.Judge Ruth Bader Ginsburg told the Sen-

ate Judiciary Committee on July 20 that hernomination should be evaluated on the basisof her 34-year written record. That recordprovides a solid, and perhaps even compel-ling, basis for Senators to vote against hernomination. First, she believes courts shouldmake policy and implement judges' own so-cial vision. Second, her social vision is veryliberal. Third, her supporters believe she willwork to implement that vision on the Su-preme Court.I. JUDGE GINSBURG BELIEVES THAT COURTSSHOULD MAKE POLICY AND IMPLEMENTJUDGES' OWN SOCIAL VISION

She approves of courts changing their in-terpretation of the Constitution because of"a growing comprehension by jurists of apervasive change in society at large."1

She approves of instances where"tp]ervasive social changes" underminedprevious Supreme Court decisions she feltimpeded women's right.2

She approves of cases where the SupremeCourt "has creatively interpreted clauses ofthe Constitution * * * to accommodate amodern vision" of society.3

She approves of "[b]oldly dynamic inter-pretation, departing radically from the origi-nal understanding" to achieve certain re-sults.4

She believes courts should be restrainedonly when legislatures are activist.5

She believes courts should "repair" or "re-write" unconstitutional legislation to reachdesirable results rather than striking itdown and letting legislatures do the legislat-ing.6

She testified at her hearing that courtsshould sometimes act as "interim legisla-tures."

Footnotes appear at end of article.

She believes factors that "tug judges to-ward the middle" on appellate courts are notpresent on the Supreme Court, which faces"grand constitutional questions."7

II. JUDGE GINSBURG'S SOCIAL VISION ISEXTREMELY LIBERAL

Judge Ginsburg served on the nationalboard of the ACLU when it adopted positionsopposing any restrictions on pornography(including child pornography), opposing anyrestrictions on prostitution, and opposingthe criminalization of adult/child sex.

Judge Ginsburg testified during her hear-ing that she opposes discrimination on thebasis of sexual preference.

Judge Ginsburg has written that the Su-preme Court's decisions that the Constitu-tion does not require the public funding ofabortion are "incongruous"8 and representthe "[m]ost unsettling of the losses" forwomen's rights.9

Judge Ginsburg co-authored a report forthe U.S. Commission on Civil Rights pur-porting to identify "Federal laws whichallow implicit or explicit sex-based discrimi-nation" and offering recommendations.10 Hersocial vision, as outlined in this report, in-cludes:

Drafting women,11 and sending them intocombat.12

Legalizing prostitution, which she believesis protected by the Constitution.13

Lowering the age of consent for sexual actsto 12 years.14

Terminating all public financial support of4-H Boys and Girls Clubs,15 Boy Scouts, GirlScouts, Boys' Clubs of America, Big Brothersof America, and other organizations untilthey open their membership to both sexes,change their name by using only sex-neutrallanguage, and purging any activities andpurposes that "perpetuate sex-role stereo-types."16

Single-sex prisons.17

Replacing fraternities and sororities atcolleges and universities with single-sex "so-cial societies."18

Constitutional protection of bigamy.19

Judge Ginsburg even included the statuteestablishing Mother's Day and Father's Dayas separate holidays as one that allows "im-plicit or explicit sex-based discrimination"though did not offer a specific recommenda-tion for correcting this problem.20

III. JUDGE GINSBURG'S ALLIES AND FRIENDS BE-LIEVE SHE WILL IMPLEMENT HER SOCIAL VI-SION ON THE SUPREME COURTOn July 22, the woman who replaced Judge

Ginsburg as director of the ACLU's Women'sRights Project told PBS that Judge Gins-burg has a definite social vision and willhave no restraints on implementing that vi-sion when she gets on the Supreme Court.

On July 20, Eleanor Homes Norton, theDistrict of Columbia's congressional dele-gate, introduced Judge Ginsburg to the Judi-ciary Committee and stated that Judge Gins-burg would make great strides for women'srights on the Supreme Court just as she hadwhile an advocate and scholar.

The left-wing Alliance for Justice assertsthat any prediction that Judge Ginsburg willbe a moderate member of the Supreme Courtis "at best premature."21 Indeed, the Alli-ance believes that "it is the battles shefought prior to her service on the bench thatportend" the kind of Supreme Court Justiceshe will be.22

IV. CONCLUSION

Judge Ginsburg said her nominationshould be evaluated on the written record,supplemented by her testimony before theJudiciary Committee. By that standard,

there is ample ground for opposing the ap-pointment of this judicial activist to the Su-preme Court. She takes a fundamental polit-ical approach to the law, believing thatcourts can and should work to implementjudges' social vision. Her own social vision—the one she will enforce on the SupremeCourt—is extremely liberal. Her allies andsupporters believe that she will in fact work,in the unconstrained environment on the Su-preme Court, to implement that vision inmuch the same fashion that she pursued heragenda as an advocate.

Any Senator claiming the label "conserv-ative" or even "moderate" will find it dif-ficult to explain voting for someone withsuch a clearly activist record. Judge Gins-burg's record is more hostile to conserv-atives than Judge David Souter's record wasto liberals. The vote on Souter's 1990 nomi-nation was 90-9.

FOOTNOTES1 Ginsburg, "Remarks on Women Becoming Part of

the Constitution," 6 Law & Inequality 17,20 (1988).2Ginsburg, "Sex Discrimination," in L. Levy, K.

Karst & D. Mahoney (eds.), Encyclopedia of theAmerican Constitution (1986), at 1667.

3 Id. at 1673.4 Ginsburg, "Sexual Equality Under the Four-

teenth and Equal Rights Amendments," 1979 Wash-ington University Law Quarterly 161,161.

5Ginsburg, "Inviting Judicial Activism: A 'Lib-eral* or 'Conservative' Technique?" 15 Georgia LawReview 539,550 (1981).

8Ginsburg, "Some Thoughts on Judicial Authorityto Repair Unconstitutional Legislation," 28 Cleve-land State Law Review 301 (1979).

7Ginsburg, "Styles of Collegial Judging: OneJudge's Perspective," Federal Bar News and Jour-nal, March/April 1992, at 200.

8Ginsburg, "Some Thoughts on Autonomy andEquality in Relation to Roe v. Wade," 63 NorthCarolina Law Review 373,386 (1985).

9 Ginsburg, supra note 2, at 224.10U.S. Commission on Civil Rights, Sex Bias in the

U.S. Code (April 1977). The report states that "theinitial research and draft of this report was devel-oped by contractors, Ruth Bader Ginsburg and Bren-da Feigen Fasteau." Id. at iii. Fasteau is a formerdirector of the American Civil Liberties Union'sWomen's Rights Project.

"Id. at 218."Id. at 26."Id. at 97."Id. at 102.15 Id. at 138.18 Id. at 148."Id. at 101.18 Id. at 169.19 Id. at 195-96.20 Id. at 146.21 Alliance for Justice, Report on the Nomination

of Judge Ruth Bader Ginsburg to the United StatesSupreme Court, at 5.

22 Id. at 2.

[From the Family Research Council,Washington, DC]

JUDGE RUTH BADER GINSBURG: GROUNDS FORQUESTIONS

(By David M. Wagner, Director of LegalPolicy)

In choosing Appeals Court Judge RuthBader Ginsburg for the U.S. Supreme Court,President Clinton has achieved a triple goal:An easy confirmation process; political cred-it for selecting a "moderate"; and a probablyreliable liberal vote on key social issues,with the legal acumen to make her opinionsinfluential.

In deciding whether to oppose Judge Gins-burg's confirmation, conservative and pro-family groups have to weigh how much worseClinton's selection could have been, againsthow much damage can be done by a carefulliberal jurist with a non-negotiable commit-ment to far-reaching, if slow-paced, socialchange.

August 2, 1993 CONGRESSIONAL RECORD—SENATE 18125This paper will set forth some areas of

Judge Ginsburg's record that should providematerial for questioning when she appearsbefore the Senate Judiciary Committee, orfor the casting of an informed vote by mem-bers of the Senate.

GINSBURG ON ABORTION

It is being said that Judge Ginsburg has"criticized Roe v. Wade." Technically this istrue; in fact, her most recent "criticism" ofRoe came in a speech delivered just lastMarch, shortly before Justice Byron Whiteannounced his intention to resign. Thatspeech may well account for the absence ofJudge Ginsburg's name from most observers'lists of possible nominees throughout Apriland May.

However, in these "critiques" of Roe thereis actually less than meets the eye. JudgeGinsburg's criticisms of Roe are basicallytwo:

1. By laying down a framework for all sub-sequent abortion law, the Court in Roeforced a more rapid reform than most statelegislatures were willing to allow, therebystrengthening the right-to-life movement.Had the Court been content merely to strikedown the Texas statute that was at issue inRoe, without announcing the rigid "tri-mester" system, the pro-abortion drift of thestate legislatures would have continuedwithout interruption. In other words, JudgeGinsburg criticizes Roe for being a less effec-tive vehicle for abortion rights than it couldhave been.

In her recent speech she noted that Roe"halted a political process that was movingin a reform direction and thereby, I believe,prolonged divisiveness and deferred stablesettlement of the issue."1 And she wrote ina 1990 article: "There was at the time [ofRoe], as Justice Blackmun noted in his opin-ion, a trend 'toward liberalization of theabortion statutes.' Had the Court writtensmaller and shorter, the legislative trendmight have continued in the direction inwhich it was clearly headed in the early1970s."2

Furthermore, as she noted in a 1985 articlebased on a 1984 speech: "The sweep and detailof the opinion stimulated the mobilization ofa right-to-life movement and an attendantreaction in Congress and state legisla-tures."3

2. Roe grounded the abortion right on per-sonal privacy and autonomy, rather than onsex discrimination. In contrast, Judge Gins-burg believes the Court should have ground-ed the abortion right on the theory that,since only women become pregnant, all re-strictions on abortion discriminate on thebasis of sex, and therefore violate the EqualProtection Clause of the Fourteenth Amend-ment. Closely allied to this legal argumentis the overtly political argument that abor-tion is necessary to the civic and profes-sional equality of women.4

Displaying her penchant for announcingher own views by quoting approvingly fromothers, Judge Ginsburg wrote in 1985:

"Professor Paul Freund explained where hethought the Court went astray in Roe, and Iagree with his statement. The Court prop-erly invalidated the Texas proscription, heindicated, because '[a] law that absolutelymade criminal all kinds and forms of. abor-tion could not stand up; it is not a reason-able accommodation of interests.'* * *

"I commented at the outset that I believethe Court presented an incomplete justifica-tion for its action. Academic criticism ofRoe, charging the Court with reading its own

Footnotes appear at end of article.

values into the due process clause, mighthave been less pointed had the Court placedthe woman alone, rather than the womantied to her physician, at the center of its at-tention. Professor Karst's commentary is in-dicative of the perspective not developed inthe High Court's opinion: he solidly linkedabortion prohibitions with discriminationagainst women. The issue in Roe, he wrote,deeply touched and concerned 'women's posi-tion in society in relation to men.'5"

It should be particularly noted that, whilesome abortion regulations survive scrutinyunder the Roe test as modified by PlannedParenthood v. Casey,6 Judge Ginsburg'sequal protection analysis would strike downany and all abortion regulations (though aban on sex-selection abortion might presentan arguable question for her), on the theorythat any and all abortion regulations createunequal burdens on women and men.

Judge Ginsburg also points out that hertheory would even require striking down theHyde Amendment—i.e., it would require thefederal government to fund abortions. Shewrote: "If the Court had acknowledged awoman's equality aspect, not simply a pa-tient-physician autonomy dimension to theabortion issue, a majority might perhapshave seen the public assistance cases as in-stances in which, borrowing a phrase fromJustice Stevens, the sovereign had violatedits 'duty to govern impartially.' " 7

Thus, just at the time the Clinton adminis-tration is fine-tuning its health care planand proposing to include abortion coveragein it, the court is getting a new Justice whobelieves the Constitution requires the fed-eral government to fund abortion.

GINSBURG ON JUDICIAL METHOD

Another claim made about Judge Ginsburgis that she is a believer in, and a practitionerof, judicial restraint. But as Thomas Jippingof the Free Congress Foundation points out,one must distinguish between judicial re-straint as a principle and judicial restraintas a style.

Judge Ginsburg's record includes manypraiseworthy instances of judicial restraint.For instance, in a case involving a homo-sexual serviceman who argued that the mili-tary's policy on homosexuals violated hisconstitutional right to privacy, Judge Gins-burg concurred with her D.C. Circuit col-leagues in turning down the plaintiffs peti-tion for en bane review of the panel opinionrejecting his claim.8 At that time, the Su-preme Court had not yet definitively ruledon whether homosexual acts were covered bythe constitutional right of privacy,9 so intheory, Judge Ginsburg could have voted infavor of making some new law in this area.She did not do so. Judicial restraint is clear-ly part of her judicial style.

However, her career as the chief activist-litigator for the ACLU's Women's RightsProject was dedicated to persuading thecourts that the language of the 14th Amend-ment requires a social revolution beyondanything that those who wrote and ratifiedthe 14th Amendment dreamed of. This is theessence of judicial activism—the theory thatthe words of the Constitution are blankcheck to be filled in by judges, in light ofwhatever understanding they have of whatcontemporary thinking demands or whatcontemporary society needs. This form ofjudging necessarily entails the substitutionof the values of federal judges—which for de-mographic reasons tend to be the values ofthe "knowledge class"—for the values of therank and file of the American people.

In a brief paper given as part of a Federal-ist Society conference,10 Judge Ginsburg de-

fended the Supreme Court's sex equality de-cisions of the 1970s primarily by pointing outhow overwhelmingly the Burger Court adopt-ed the view of the Equal Protection Clausethat Ginsburg, as advocate, had promoted,and by suggesting how unjust would be thepredicament of women today had those deci-sions not come down the way they did. Ap-parently her view is that judicial activism(at least where sex equality is concerned) isjustified by its high degree of support on theCourt, and by its good results.

In her 1981 Georgia Law Review article,11

Judge Ginsburg seeks to debunk the viewthat judicial activism is exclusively a tool ofpolitical liberals, by pointing out instancesin which conservatives have repaired to thecourtroom to seek to reverse a legislative orexecutive outcome, e.g. over the PanamaCanal issue, and over President Carter's ter-mination of the mutual defense treaty withTaiwan.12

The article concludes with a solemn warn-ing against "attempts to politicize the judi-ciary,"13 in which Judge Ginsburg's primeexhibit is the testimony given by a conserv-ative organization, United Families of Amer-ica, in opposition to her own confirmationfor her present seat on the Court of Appealsfor the D.C. Circuit."

UFA had suggested to the Judiciary Com-mittee a list of questions for judicial nomi-nees. Some of these questions were suchthat, in our view, a responsible nomineewould have to decline to answer them, be-cause to answer would be to make a pre-mature commitment to a given outcome onan issue likely to come before the court.15

The view that demanding outcome commit-ments from a judicial nominee amounts toan unacceptable politicization of the judici-ary is bedrock conservative legal doctrine—a point that Judge Ginsburg hammers homeby backing up her critique of the UFA ques-tions with a quote from then-JusticeRehnquist.18

But before we give Judge Ginsburg a stand-ing ovation and a leatherbound copy of TheFederalist Papers, one might ask: did thepoliticization of the judiciary start withUFA'S little list? From the vantage point of1981, after two decades in which Americansociety was significantly remade by judicialdecisions reading the liberal agenda into theFourteenth Amendment, is it not a touchdisingenuous to imply that the threat of apoliticized judiciary comes primarily fromthe conservatives? Especially when one hap-pens to have been the legal architect of aportion of the judicial revolution? Does notthis sort of argument suggest the presence ofan unconfessed but powerful commitment tothe liberal agenda?

The evidence suggests that judicial re-straint is part of Judge Ginsburg's judicialstyle, but not part of her judicial philosophy;that she is cautious in her rulings, but doesriot believe that the judiciary has any over-arching obligation to refrain from readingliberalism into the Constitution.

GINSBURG, THE ACLU, AND STATUTORY RAPE

According to a transcript obtained andquoted by the conservative weekly HumanEvents, the ACLU, honing down its positionon homosexual rights at a board meeting inDecember 1975, adopted the view that thestate has a legitimate interest in "protect-ing children from sexual abuse, an interestunderlying some laws concerned with sexualconduct between adults and minors."17

This was substitute language. The firstdraft had articulated the state's interest insomewhat stronger terms: "[t]he state has alegitimate interest in controlling sexual be-havior between adults and minors by crimi-nal sanctions."18

18126 CONGRESSIONAL RECORD—SENATE August 2, 1993

The change is explained in the transcriptas follows:

"In the second paragraph of the policystatement, dealing with relations betweenadults and minors, Ruth Bader Ginsburgmade a motion to eliminate the sentencereading: 'The state has a legitimate interestin controlling sexual behavior betweenadults and minors by criminal sanctions.'She argued that this implied approval ofstatutory rape laws, which are of question-able constitutionality.19"

Assuming that the scribe faithfully re-corded then-Prof. Ginsburg's objection to thestronger anti-pederastly language, the tran-script still does not tell us what her con-stitutional argument against statutory rapelaws was or is. But given the predominanceof the theme of sex-equality in her constitu-tional writings, it is not fanciful to assumethat she objects to the different ages of con-sent for girls and for boys that are typicallyfound in such statutes. But surely such "dis-crimination" reflects a judgment by the leg-islatures that young women are more in needof protection against what we would now callsexual harassment than young men are. Isthis an unconstitutional policy judgment, re-quiring that our statutory rape laws be over-thrown?

By no stretch can then-Prof. Ginsburg'sintervention here be read as supportive ofpedophilia. As noted, she was concerned withan appearance of endorsement for statutoryrape laws that she considered unconstitu-tional.

Nonetheless, the Judiciary Committeeshould ask her to clarify the views reflectedin this transcript.

GINSBURG AS FEMINIST BLUE-PENCILLER

Attention has already been called to JudgeGinsburg's preference for adopting the state-ments of others, rather than announcing herviews in her own words. Yet, despite the debtthat she implicitly acknowledges to thosewhom she approvingly quotes, she nonethe-less feels that their choice of words is inneed ot updating, in light of the rules laiddown by "political corrections."

Thus, in her article in the Georgia Law Re-view,20 she quotes from Judge Carl McGowanon the subject of legislators becoming plain-tiffs. Judge McGowan describes this sort ofplaintiff as "a legislator who has failed topersuade his colleagues."21 In Judge Gins-burg's quotation of this line, however, thewords "or her" have been added in bracketsbetween the word "his" and the word "col-league."22

Likewise, she quotes Judge Irving L. Gold-berg defending judicial activism in some cir-cumstances. As quoted by Judge Ginsburg,Judge Goldberg said that "the [judicial]fireffighters] must respond to all calls."23

Judge Ginsburg has added the word "judi-cial" in brackets, just to clarify that JudgeGoldberg was invoking a metaphor for judg-ing rather than defining the duties of fire de-partments.

Thus, in order to steal a glance at theoriginal phrase as written by Judge Gold-berg, the eye is inclined to suppress the word"judicial". Continuing with this procedure,the eye then also suppresses the word "fight-ers," since this is also in brackets. We there-fore seem to have Judge Goldberg saying"the fire must respond to all calls," whichmakes very little sense. But then, one real-izes shrewdly that Judge Ginsburg is notadding the word "fighters," but changing"firemen" to "firefighters."

A few pages further on, faced with a politi-cally incorrect usage by such an exalted fig-

ure as Supreme Court Justice Felix Frank-furter, the blue pencil hesitates. The resultis that we find Justice Frankfurter quoted assaying: "There is a good deal of shallow talkthat the judicial robe does not change theman [and today we would add, or woman]within i t* * *"24

Perhaps it is the appeals court judge'sdeeply engrained respect for "Higher Author-ity"25 that keeps Judge Ginsburg from sim-ply dropping "[or woman]" straight into thetext, without the patronizing apology for thebenighted era in which Justice Frankfurterlived and which he was evidently unable totranscend. (Further on in the passage, JudgeGinsburg does in fact drop in an unadorned"[or women]", when Frankfurter discussedhow "men are loyal to the obligation withwhich they are entrusted."26

Only once in this article does Judge Gins-burg forgo an opportunity to correct a politi-cally incorrect usage. This lapse of vigilanceoccurs when she quotes from Gilbert andSullivan's opera Iolanthe; specifically, fromPrivate Willis' observation that the brain-lessness of most modern members of Par-liament may be a good thing after all, be-cause:"* * * [the prospect of] a lot of dull MPsIn close proximity,All thinking for themselves, is whatNo man can bear with equanimity.27"

The judge's decision to withhold her legis-lative hand at this point is probably due lessto reverence for fellow-lawyer W. S. Gilbert'stext than to a commendable regard for scan-sion.

There are many possible views on the pro-priety of enforcing gender-neutral language.Our only point here is that it takes a highdegree of partisan zeal to deny to a peer theright to choose his own words, and to insistinstead that everyone's usage be made toconform to a given ideological imperative,however noble. A conservative jurist exhibit-ing similar zeal for his own cause would besubjected, both in the media and by the Sen-ate Judiciary Committee, to a searching in-quiry as to his judicial temperament.

CONCLUSION

Let us return to the passage by JusticeFrankfurter, quoted by Judge Ginsburg inher Georgia Law Review article. It reads(without Judge Ginsburg's edits):

"There is a good deal of shallow talk thatthe judicial robe does not change the manwithin it. It does. The fact is that on thewhole judges do lay aside private views indischarging their judicial functions. This isachieved through training, professional hab-its, self-discipline and that fortunate al-chemy by which men are loyal to the obliga-tion with which they are entrusted.28"

To the extent that Judge Ginsburg is hereengaging in her well-tested practice of stat-ing her own views through quotation of oth-ers, we take heart. Even the most activist ofattorneys is capable of making the transi-tion to the very different mindset of thejudge, and Judge Ginsburg's own career is anexample of the transition.

Nonetheless, it would be an abdication of agrave responsibility if Senators, especiallythose of the opposition party, fail to ask herquestions about, inter alia:

What regulations of abortion, if any, wouldsurvive a consistent application of the testshe outlined in her North Carolina Law Re-view article (note: she could answer thiswithout committing herself to using thattest as a Supreme Court Justice);

What the original intent behind the Four-teenth Amendment was, and how, if at all,

this intent should influence constitutionaljudging today;

What the principles that undergird judicialrestraint are, and how she has or has notlived up to those principles.

Far from a fire-breathing ideologue of theleft, but a committed liberal nonetheless—that is our impression of Judge Ginsburg,based on her writings, and that is how we ex-pect she will appear after questioning by theJudiciary Committee. The President who ap-pointed her, and the Senators who will prob-ably vote to confirm her, should receive bothfull credit and full blame for what they arepresently rushing to do.

FOOTNOTES1 Ginsburg Lament Roe's Lack of Restraint, LEGAL

TIMES, April 5, 1993, at 11.2 Ginsburg, On Muteness, Confidence, and

Collegiality: A Response to Professor Nagel, 61 U. OFCOLO. L.REV. 715, 718-719 (1990).

3 Ginsburg, Some Thoughts on Autonomy and Equal-ity in Relation to Roe v. Wade, 63 NORTH CAROLINALAW REVIEW 375, 381 (1985).

4 A majority of the present Court has already en-dorsed this view; see Planned Parenthood v. Casey,11 S.Ct. 2791, 2809 (1992).

5Ginsburg, supra n.3, at 381, citing Freund, Stormsover the Supreme Court, 69 A.B.A. J. 1474, 1480 (1983)(adapted from inaugural Harold Leventhal Lecturea t Columbia Law School), and Karst, Foreword:Equal Citizenship Under the Fourteenth Amendment, 91HARV.L.REV. 1, 53-59 (1977), at 58.

eCasey, supra n.4.7 Ginsburg, supra n.3, at 385 (citing Harris v. McRae,

448 U.S. at 357 [Stevens, J., dissenting])."Dronenburg v. Zech, 746 F.2d 1579 (1984) (order on

appellant's suggestion for rehearing en bane).9 See Doe v. Commonwealth's Attorney, 425 U.S.

901, 96 S.Ct. 1489 (1976), aff'g mem. 403 F. Supp. 1199(E.D. Va. 1975). Bowers v. Hardwick, 478 U.S. 186, 106S.Ct. 2841 (1986), had not yet been decided at thetime of the Dronenburg litigation.

10 Ginsburg, Interpretations of the Equal ProtectionClause, 9 HARV.J.L.&PUB.POL. 43 (1986). The Fed-eralist Society is a nationwide organization of con-servative and libertarian lawyers, law students, andlaw professors. Greatly to her credit, Judge Gins-burg has been a frequent participant in conferencessponsored by the Federalist Society and other con-servative groups.

"Ginsburg, Inviting Judicial Activism: a "Liberal" or"Conservative" Technique?, 16 GEORGIA L.REV. 539(1981).

"Id. at 542." Id. 553.14 Id. at 553-4, citing: Hearing before the Senate

Committee on the Judiciary on the Nomination ofRuth Bader Ginsburg for United States CircuitJudge, Statement of Sandy MacDonald on behalf ofUnited Families of America (June 4, 1980)(typescript copy).

18 Id. Examples of overly-specific questions on theUFA list were questions on busing, parental consentfor abortion, and rescission of ERA ratification. Onthe other hand, a t least one UFA question cited byJudge Ginsburg—"What principles ought federaljudges to follow in deciding social policy cases?"—can and should be answered fully by even the mostscrupulous nominee.

ie Id. at 554-5, citing Rehnquist, Act Well YourPart: Therein all Honor Lies, 7 PEPPERDINE LAWREVIEW 227, 229-30 (1980).

"How "Moderate" is Ruth Ginsburg', HUMANEVENTS, June 26, 1993, at 1.

"Id."Id. at 17.20 Ginsburg, supra n. 11.21 Id. at 542, citing McGowan, Congressmen in

Court: The New Plaintiffs, id. at 241.22 Id. at 542.23 Id. a t 547, citing Reynolds v. Allstate Insurance

Co., 629 F.2d 1111, 1112 (5th Cir. 1980).24 Id. at 555. citing Public Utils. Comm'n v. Pollak,

343 U.S. 451, 466 (1952).26 See Dronenburg v. Zech, 746 F.2d. 1579, 1581, n. 1

(D.C. Cir., denial of request for rehearing en bane,1984) (Ginsburg, J., concurring).

28 Supra n. 15.^Id. at 557 (cited in prose, beneath Indented pas-

sage). See GILBERT & SULLIVAN, IOLANTHE, ActII (1882) (Aria: "When All Night Long").

28 Supra n. 15.

18360 CONGRESSIONAL RECORD—SENATE

SENATE—Tuesday, August 3, 1993(Legislative day of Wednesday, June 30,1993)

August 3, 1993

The Senate met at 9:40 a.m., on theexpiration of the recess, and was calledto order by the Honorable BARBARABOXER, a Senator from the State ofCalifornia.

PRAYERThe Chaplain, the Reverend Richard

C. Halverson, D.D., offered the follow-ing prayer:

Let us pray:He answered and said unto them,

"When it is evening, ye say, It will be fairweather: for the sky is red. And in themorning, It will be foul weather to-day:for the sky is red and lowering. O ye hyp-ocrites, ye can discern the face of the sky;but can ye not discern the signs of thetimes?"— Matthew 16:2, 3.

Eternal God, our hearts are over-whelmed with the desolation the floodhave brought, and continues to bring,in the Midwest. In our helplessness, wepray for the people who have been dev-astated, for the many who have lostloved ones, who have lost homes andlands and businesses, for the frustra-tion many feel as they work hard tofight the flood and are still over-whelmed by it. We who have beenspared this tragedy feel guilty that wehave not suffered.

Mighty God, are You trying to saysomething to us? Are these signs, re-minding us of judgment? Are these awarning that we must get our house inorder, nationally?

Gracious God, we pray for a visita-tion upon us as a people, that we mayturn to Thee in our hour of despera-tion.

In Jesus' name. Amen.

APPOINTMENT OF ACTINGPRESIDENT PRO TEMPORE

The PRESIDING OFFICER. Theclerk will please read a communicationto the Senate from the President protempore [Mr. BYRD].

The legislative clerk read the follow-ing letter:

U.S. SENATE,PRESIDENT PRO TEMPORE,

Washington, DC, August 3,1993.To the Senate:

Under the provisions of rule I, section 3, ofthe Standing Rules of the Senate, I herebyappoint the Honorable BARBARA BOXER, aSenator from the State of California, to per-form the duties of the Chair.

ROBERT C. BYRD,President pro tempore.

Mrs. BOXER thereupon assumed thechair as Acting President pro tempore.

RECOGNITION OF THE MAJORITYLEADER

The ACTING PRESIDENT pro tem-pore. The majority leader is recog-nized.

VOTES ON S. 919 AND GINSBURGNOMINATION

Mr. MITCHELL. Madam President,the Senate will now proceed to the na-tional service bill with a vote on finalpassage of that bill to occur at 10 a.m.this morning. Immediately followingthat, there will be a vote on the nomi-nation of Judge Ginsburg to the Su-preme Court. I wish to repeat my re-quest to Senators that in accordancewith past practice and tradition, Sen-ators take their seats and remain attheir desks during the vote on theGinsburg nomination.

Madam President, I would like tojust make a brief comment on thatnomination now, and then I will dis-cuss the schedule for the remainder ofthe week.

NOMINATION OF RUTH BADERGINSBURG

Mr. MITCHELL. The vote by whichthe Senate will this morning confirmthe nomination of Judge Ruth BaderGinsburg as an Associate Justice of theUnited States Supreme Court will re-flect the very high level of admirationand respect she has earned in thisbody.

Judge Ginsburg's appearance beforethe Senate Judiciary Committee lastmonth confirmed for all of us that herreputation as a brilliant legal scholarcommitted to the fundamental con-stitutional freedoms is well deserved.

Judge Ginsburg revealed at the hear-ings what her career has previouslydemonstrated, a complete and securegrasp of the law and of the role of thejudiciary in a representative democ-racy like ours.

With the vote this morning, JudgeGinsburg will be ready to be sworn inand take her seat as Justice Ginsburgwhen the Supreme Court's fall term be-gins in October. It will be a pleasure tocongratulate her and to look forwardto her tenure on the Court.

SCHEDULEMr. MITCHELL. Madam President,

the Senate is scheduled to commencethe August recess by the close of busi-ness on Friday. If we are to make thatschedule, there will have to be coopera-tion and many votes and much consid-

eration of various measures by theSenate during this week. And so I willbe meeting with the distinguished Re-publican leader, with Senator KEN-NEDY, Senator NUNN, and others involv-ing legislation we are trying to take upand consider.

But I merely want to alert and cau-tion Senators to the fact that therewill be votes at any time throughoutthe day, evening, perhaps into thenight during this week. Senatorsshould be prepared for lengthy ses-sions. No requests for periods of timein which votes do not occur will be en-tertained or considered. Senators mustbe prepared to be here within 20 min-utes to cast votes when necessary.

With respect to the votes this morn-ing, the last two votes will be 10 min-utes each. There will be four votes insuccession. The first two will be underthe usual time procedures. The lasttwo votes will be for 10 minutes each.So I encourage my colleagues to co-operate, to be present, not to make re-quests for no votes for this evening orfor that morning or for that afternoon.This is the final week, and if we are tocomplete our action and begin the re-cess, it will be necessary to have co-operation.

Of course, as I have said many times,the principal action we will take is onthe reconciliation bill. I expect that tobe enacted later this week. If for anyreason it is not, there will be no recess.I have said this publicly on many occa-sions, and I wish to repeat it now sothere cannot possibly be any misunder-standing whatsoever on the part of anySenator.

If for any reason I do not expectthis to occur, but if for any reason rec-onciliation does not pass, the recess isautomatically canceled and the Senatewill remain in session throughout themonth of August. But I hope and ex-pect that that will not occur and wewill be able to complete that and othermeasures during the week.

Madam President, I thank my col-leagues for their patience and coopera-tion, and I now yield the floor.

RESERVATION OF LEADERSHIPTIME

The ACTING PRESIDENT pro tem-pore. Under the previous order, theleadership time is reserved.

NATIONAL AND COMMUNITYSERVICE TRUST ACT OF 1993

The ACTING PRESIDENT pro tem-pore. Under the previous order, the

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UNITED STATES OF AMERICA Congressional Recording letter: U.S. SENATE, PRESIDENT PRO TEMPORE,...

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