madison was really a remarkable man. he went on to describe the separation of powers as -- quote -- "essential precaution in favor of liberty." and alexander hamilton in "federalist" number 78, "the federalist paper" that also was written to encourage americans to support the constitution, quotes the french fil philosophr montesquieu who said -- quote -- "there is no liberty if the power of judging not be separated from the legislative and executive powers." the judicial branch then is limited to the interpretation and application of law, law that exists, not law they create. at no point may its judges substitute their political or personal views for that of elected representatives or to

the people themselves, the people's will having been permanently expressed in the constitution that created the judiciary. to gain a deeper understanding of this role, it's instructive to look further at hamilton's "federalist" number 78, widely regarded as one of the definitive documents on the american court system. in it, hamilton explains tha that -- quote -- "the interpretation of the law the proper and peculiar province of the courts. the constitution must be regarded by the judges as a fundamental law. it, therefore, belongs to them -- it, therefore, belongs to them to ascertain its meaning. judges do not grant rights or remove them. basically they defend the rights that the constitution enumerates. so it's, thus, no surprise that hamilton says a judge must have an -- quote -- "inflexible and

uniform adherence to the rights of the constitution." but in order to ensure that judges would consistently display such an adherence to the constitution in the face of outside pressures, our framers thought about this and they took steps to ensure that the judiciary was independent from the other branches and insulated from political interference. as was often the case, the framers were guided by the wisdom of their own experience. they had a hot of common sense in the way they dealt with things -- they had a lot of common sense in the way they dealt with things. in england, colonial judges were not protected from the whims of the king. included in the declaration of independence's litany of grievances is the assertion -- this is in the declaration when jefferson was setting forth the complaints he had against the king, he asserted that the king

had -- quote -- "made all judges dependent on his will alone for the ten iewfer thei tenure of t" that was a complaint. that was one of the things we objected to in the way the king was handling the people in -- in the colonies, and that was part of the declaration, and when the constitution was drafted, that matter was fixed. in order to shield the courts from the threat of political pressure or retribution, article 3 effectively grants judges a lifetime appointment. whew. the only federal office in america that has a lifetime appointment. we have to answer to the public. so does the president. it also specifically prohibits congress from diminishing judicial pay or removing judges during times of good behavior. so congress can't remove a judge or even cut their pay.

hamilton referred to this arrangement as one of the most valuable of modern improvements in the practice of government, closed quote. and he went on to say that it was -- he saw it as the best step available to -- quote -- "secure a steady, upright and impartial administration of the laws." so madison hoped that the court set apart from the shifting times of public opinion would be better suited to act as -- quote -- "faithful guardians of the constitution to stand against dangerous innovations in government." in other words, courts are removed from the political process not so they are free to interpret the constitution and set policy but so they are free from the pressures of those who would encourage them to do just that. the framers also understood that the courts as an unelected branch of government with a

narrow mandate would also necessarily be the weakest branch. hamilton wrote that whoever looks at the -- quote -- "different departments of power must perceive that in a government in which they are separated from each other, the judiciary from the nature of its functions will always be the least dangerous to the political rights of the constitution because it will be least in a capacity to annoy or injure them. it may true said to have neither force nor will but merely judgment." so in light of this narrow mandate that judges have been given, judges have understood from time to time that they ought not to be drawn into the political thicket, that they ought to decline to answer

questions that they felt were more appropriately to be addressed by the political branches of government. typically this disciplined approach has been invoked when the constitution has delegated decision making on a particular issue to a particular branch. when the court finds a lack of -- quote -- "judicially discoverable and manageable standards" to guide its decision making or when the court feels it best not to assert itself in a conflict between branches, that's what's happening. they're showing restraint and discipline. this is an example of judicial restraint because it respects the powers of the other branches and the role of elected representatives rather than the appointed judges in establishing

policy. well, as i mentioned before, this is not an academic exercise or an abstract hypothetical. judicial activism has enormous consequences for every american, you see, because if judges who are given a lifetime appointment and guarantee of salaries are given the power to set policy, then that is an antidemocratic act because we've created someone outside the political process and allowed them to set policy for the country and they cease to be accountable to the american people. the men and women of the supreme court hold extraordinary power over our lives. it takes only five justices to determine what the words of the constitution mean. you think it's nine? it's really just five. five of the nine agree that the constitution means this or that, it's ass good -- hold your hat -

it's as good as if three-fourths of the states passed a constitutional amendment along with the congress supermajority votes. so this is a powerful thing, a prospect justice possesses the ability to interpret words of the constitution. when justices break from the ideal of modest and restrained practices as described by hamilton, they begin creating rights and destroying rights based on their personal views. which they were never empowered to do. the temptation to reinterpret the constitution leaves judges sometimes, i think -- i say this succumb to the siren call of just using that opportunity they might possess at a given point in time to enact something they'd like to see occur. maybe somebody will write in a

law review they were bold and courageous and did something great. but we've seen some of these actions occur. under the power to regulate business and commerce the government is given, our supreme court recently ruled that carbon dioxide, which is a natural occurring substance in our environment -- when plants decay, they emit carbon dioxide; when they live, they draw in from the air carbon dioxide. it's plant food -- they -- they ruled that it was a pollutant. as a result of that, regardless of how you see that matter, i think when the statute was passed, they gave e.p.a. regulation to control pollution

in 1970's, long before global warming was ever a thought, th that -- that the congress had no contemplation that it would be used to limit carbon dioxide some years later. but that's what the court ruled. i only say that because there was a hiewrnlg economic decisi decision -- huge economic decision of monumental proportions that called on the agency of the department of -- of the united states government to regulate every business in america that uses fossil fuels. it's a far-reaching thing. right or wrong, i just point out what five members of the court can do with a ruling, and that was five members. four members dissented on that case. they also have the supreme

court -- or at least two members of the supreme court have concluded that the death penalty is unconstitutional because they concluded that it is cruel and unusual as prohibited by the eighth amendment to the constitution. they dissented on every single death penalty case and tried to get others to agree with them -- some thought others may agree with them -- but as time went by, they have now left the bench and no other judges have adhered to that philosophy. but i would say that is an absolutely untenable position, because the constitution itself makes at least eight references to the death penalty. it's implicit in the constitution itself. it says the government can't take life without due process.

that contemplates that there was a death penalty and you could take procestake life with due p. it also refers to capital crimes. it makes other references to the death penalty. every single colony, every single state at the founding of our government had a death penalty. it's an abuse of power for two judges to assert that the eighth amendment, which prohibited drawing and quartering and other inhumane-type activities, actually should be construed to limit the death penalty. that's judicial activism. they didn't like the death penalty. they read through the constitution, found these words and tried to make it say it when it does not. so the question is not whether these policies are good or bad, whether you like the death penalty or not. that's the definition of opinion, how strongly you peel and how one believes that global warming should be confronted is not the question. the question is whether a court

comprised of nine unelected judges should set policy on huge matters before the country that we are debating in the political arena. shouldn't that be the president and the congress who's accountable to the voters to openly debate these issues and vote "yes" or "no" and stand before the people and be accountsable to them for the actions they took? i think the constitution, as i've noted, clearly dictates the latter is the appropriate way. but a number of groups and activists believe that the -- the court is sort of their place and that social goals and agendas that they believe in that aren't likely to be won at the ballot box, they have an opportunity to get a judge to declare it so. so we have the ninth circuit court of appeals en banc ruling that the pledge of allegiance to the constitution is unconstitutional because it has the words "under god" in it. actually, it appears that --

it's actually never been reversed. it's been vacated, in a sense, because the prospect rejected on i think standing grounds. but at any rate, that's the things that are out there. it's not in the constitution, i would contend. so this is a bad course for america. if the judiciary heads further down that path, then i think we do have danger -- dangers, because we are actually weakening the constitution. how can we uphold the rule of law if those who weigh the scales have the power to tip them one way or the other based on their empathy, their feelings or their ideas? their personal views. how can we curb the excess of federal power if we allow our courts to step so far beyond the limits of their legitimate authority? chow the least among us depends on the law to deliver justice to protect them, to steadfastly

protect their liberties if hules are no longer object and if a single judge has the power to place his or her empathy above the law and the evidence. so with these fundamental questions to mind i hope that the comments i make will be of some value as we talk about the future, the judiciary, and what the role of a judge ought to be on our highest court. and to uphold our sacred charter of inalienable rights. let me repeat: i love the american legal system. i am so much an admirer of the federal legal system. i practiced in it for 15 years before fabulous judges. they were accused, sometimes of thinking they were anointed rather than appointed but i found most of the time,

mr. president, and you are a prosecutor, they will forked the law and -- they will follow the law and they try to be fair and that is a factor that i will defend but there's a responsibility that comes with the independence that judges get. that responsibility is when they get that bench and they assume that power they not abuse it, they use integrity, they're objective and that they shall restrain. i thank the chair. i yield the floor. the presiding officer: the senator from illinois. mr. durbin: mr. president, i've listened carefully to the statement of my colleague, senator sessions, from alabama, who is the ranking republican on the senate judiciary committee. he is charged with a special responsibility at this moment in history because with the retirement of supreme court justice david souter and the vacancy that's been created, the

senate judiciary committee has the responsibility to work with the president to fill that vacancy. i'm honored to be a member of that committee. and to be facing the third vacancy since i've been elected to the united states senate. it's rare in one's public political life to have a voice or partial role in the selection of one supreme court justice but to have a chance to be involved in the selection of three for a lawyer is quite an amazing responsibility. senator sessions and i are friends and we see the world somewhat differently but i would say to him that i would quarrel with the notion that our laws are so clear that a judge, given a set of facts, could only draw one conclusion. what we find often is the

opposite. well trained attorneys who become judges can look at the same law and the same facts and reach different conclusions. that's why when it comes to appellate courts it is not unusual to have a split decision. different judges see the facts in a different context. so to argue that we want judges who will always reach the same conclusion from the same laws and facts justifies human experience. it's not going to happen. people see things differently. people read words differently. people view facts deftly. and occasionally, judges faced with caseys that they may -- faced with cases they may never have envisioned see a need for change. there are times i might agree with the change or disagree. in 1954, right across the street in the supreme court, a decision was reached in brown vs. board of education, 55 years ago, they took a lock a look at the public

schools of america that were segregated, black and white, and said, no, you cannot have separate and equal schools. that brought about a dramatic change in america: the integration of america's public education. the critics said that supreme court has gone too far. they had in right to reach that conclusion. well, i disagree with those critics but some of them said they should have been strict constructionist and left schools as they were. it want their right to change the public school system of america. i think they did the right thing for this nation. having said that, there are times when a supreme court has reached a decision which i disagreed with. most recently, this current court which is dominated by more conservative members -- those who fall into the strict construction school had a case

before them of a woman, a woman who worked at a tire manufacturing plant in alabama, and she spent a live time working there. her name was lilly ledbetter. she rose through the management ranks and was very happy with the asignment she was given. she worked side-by-side, shoulder-to-shoulder with many male employees. it wasn't until she announced her retirement that one of the employees came to her and said, lily, you know, for many years now you've been paid less than the man you were working next to even though you had the same job title and the same job asignment. this company was paying less to women doing the same job as men. and she thought that was unfair after a lifetime of work that she would receive equal pay for equal work. so they filed a lawsuit under a federal law asking that she be compensated for this discrimination against her, a reduction in pay when she faced

and the retirement reduction she faced as a result of it. it was a well-known law that she filed her case under giving each american the right to allege discrimination in the workplace and set out to prove it. her case made it all the way to the supreme court of the united states across the street, the highest court in the land. and this conservative, strict construction court, departed from all of the earlier cases. the earlier cases had said something that i think was reasonable on its face. they looked at the statute, the law that the case was brought under, and they said thatlily ledbetter had a specific s. of time after she discovered -- had a specific period of time after she discovered this -- to file a lawsuit, she has six months after she discovered she was discriminated against to file a lawsuit.

and lily ledbetter said that is expeact what i did when i learned i was discriminated against i filed. but the supreme court across the street reach add different conclusion. their conclusion was that the law didn't mean that. the law meant that she had to file the law within six months after the first act of discrimination. in other words, the first time she was paid less than the man working next to her she had a clock starting to run. she had six months to file the lawsuit. well, those of us who have worked outside of government and even those working in government, for that matter, to some extent, but those working in the private sector know that it's a rare company that publishes the paychecks of every employee. so you may be working next to someone for years and never know exactly what they're being paid. that was the case with lilly ledbetter. she didn't know the man standing next to her down the same job

was being paid more. she didn't discover it until several years later. the supreme court said, unfortunately, you distant file your case in tie, we're throwing it out of court, and they did. strict constructionist, conservatives that they were, departed from the previous court's decisions which had given her and people like her the right to recover and limited that right to recover. well, in the name of lily ledbetter we changed the law to make it abundantly clear so neither this supreme court or any supreme court in the future will have any doubt that six months after the discovery of discrimination, not after the first act of discrimination. it was one of the first bills if not the first bill that president obama signed. i happened to be there at the signing ceremony and standing next to him receiving the pen for that signature was lilly ledbetter. she may not have won in the supreme court. she may not have come back with the compensation she was entitled to but she had the

satisfaction to know this congress and this president would not allow the injustice created by that supreme court decision to continue. so the senator from alabama came leer and said, you know, we don't need judges with empathy. well, that word has been stretched in many different directions. but if empathy means that we don't need judges who understand the reality of the workplace, if empathy means that we would say to lilly ledbetter, sorry, you missed it girl, you had six months to file that lawsuit from the first act of discrimination, the first paycheck, you missed it and you're out of luck, if empathy would say that is not a fair or just result, i want judges with empackage, to know thempathy and i wantthem to foli don't want them to sit high and mighty in the black robes so far above the real world that they cannot see justice if it bit them. i think that's what empathy

brings. someone who is at least in touch with the real world. for the last several two books, i guess, the nominee of president obama for the supreme court, sonia sotomayor has been meeting with the members of the united states senate. she had appear unfortunate mishap and broke her mishap at laguardia airport so i allowed her to use my conference room upstares and there was a steady parade of senators to meet her. i asked her this morning and she said i have seen 61 senators and i have six more so she may break a record for meeting face-to-face with more senators than any others and she is doing the best to answer questions she has. i think, and i toll the president when i saw -- and i told the president when i saw him at an event, he made an extraordinary choice. she was first selected to serve on the federal court, the district court, by president george herbert walker bush and

she was then promoted by president bicycle becom bill:toe circuit court, so she has more experience than any judge in 100 years, and she is a woman with an extraordinary life story having grown up in the bronx in public housing. her father died when she was nine and her mother raised her and her younger brother who became a doctor, incidentally, and she was encouraged to apply to princeton, a world she knew nothing about as a young latina but she applied and was accepted and at the end of the four-year-period she graduated second in her class at princeton. i don't believe princeton university is an easy assignment, but she was up to the challenge and she graduated from yale law school and involved in prosecution, she was

involved in working in private law practice. she really has an amazing background in law and i think she would be an 1k3r50rd member of the -- an exprord member of the suprem -- an extraordinarym. senator sessions 13resed his philosophy and i didn't have prepared remarks on the subject and though i disagree i respect him and i hope that at the end of the day we can do the senate proud and serve our nation by giving her a fair and timely hearing. let's not use a double standard on this nominee. as chairman of the senate judiciary committee, patrick leahy has suggested a timely hearing, within the same schedule of those who went before her like chief justice roberts or justice alito. if she is given the same standard of fairness, that hearing will go forward. i certainly hope it does. i think she'll do well. mr. president, i ask the following statement be placed at

a separate place in the record and within the debate on the travel promotion act of 2009. the presiding officer: without objection, so ordered. mr. durbin: thank you, mr. president. this bill that we're considering on the floor at this time could not come at a better time. october 2, the international olympic committee will select a site for the 2016 olympic games and chicago is one of the final global candidates, one of the final four, in the world. winning that bid would bring six million tourists from all over the world into the united states and generate as much as $7 billion in tour unfortunateist . this bill will welcome international visitors to our country and demonstrate to the world that the united states is open for visitors. that can only help improve the chances that the 2016 olympic games actually come to the windy city generating $1.3 trillion in economic activity each year including 8.3 million travel-related jobs.

overseas visits to the u.s. are still being hampered by the specter and memory of september 11th that costs $182 billion in lost spending by lost tourists in our country and $27 billion in lost tax receipts in eight years. the current economic downturn is expected to cost another 250,000 travelers this year and this bill addresses some of the problem. through a public private nonprofit corporation, the united states will coordinate its efforts to encourage international tourism. the new office of travel promotion within the department of commerce will work to streamline entry procedures, make travel to the united states more welcome and more efficient. the bill does all of this while reducing budget deficits by $425 million. in other words, this is one of the few bills that we'll consider that will actually make money, bringing more tourists into the united states, generating more tax revenue. that will be to our economic ne