and their property is not protected. contracts often aren't enforced properly and that -- that just deon moralizes countries and it makes it very difficult for them to progress so i'm so proud of the american legal system. it's something we inherited and we built upon and it's the bulwark of our liberty and prosperity. so we ask the question what do judges do? do they faithfully interpret the text of our laws and constitution as written? or do they have the power to reinterpret those documents through the lens of their personal views, backgrounds and opinions? is it judiciary to be a modest one applying the policies that others have enacted? or can it, the judiciary create new policies that they adjudge or later decide is good. and when a correct answer to a legal case is difficult to ascertain, is a judge then

empowered to remove his or her blindfold, that lady of justice with the blindfold on holding the scales? can they remove the blindfold and allow their personal feelings or are other outside the normal judicial evidence factors to sway the ultimate decision in the case. so i'm going to be talking about that and addressing those questions in the weeks to come. but i do think we need to first begin at the source. we must return to the words and ideas of those who founded our nation, whose foresight resulted in the greatest republic this world has ever known and the greatest legal system anywhere in the world. so it's clear from reviewing these words and ideas and ideals particularly as expressed in the constitution itself that our founders desired and created a

court system that was independent, impartial, restrained and that through a faithful constitution restricts against the intrusion of the government on the rights of human kind. the founder established a government that was modest in scope and limited in its authority. nor to limit the expansion of federal government power, they bounded the government by written constitution. its powers were only those expressly granted to the government. as chief justice john marshall famously wrote, quote, this government is acknowledged by all to be one of enumerated powers. enumerated means the government has the powers it was given and only those powers it was given and if you'll recall the constitution starts out, "we the

people of the united states of america" in order to establish a more perfect be union. but those powers were not unlimited. they were indeed limited. they were enumerated and set forth. but i found these limitations, history being what it is, standing alone are not enough they created three distinct branches of government creating a system of checks and balances to prevent any one branch from consolidating too much power. the constitution gives each branch its own responsibility. article 1 of the constitution declares, quote, all legislative powers, that's us, herein granted shall be invested in a congress of the united states, closed quote. article 2 declares, quote, the

executive power shall be vested of a president of the united states, closed quote and article 3 declares, quote, the judicial power of the united states shall be vested in one supreme court. closed quote. and such other courts has the congress creates. so these words, i think, are unambiguous. the judiciary possesses no power to make law or even enforce law. and federal number 47, one of our founding fathers james madison cites the constitution of massachusetts which states, quote, the judicial shall never exercise the legislative and executive powers or either of them to the end that it may be a government of laws and not of men, closed quote. so madison in arguing for the constitution trying to convince

the americans to vote for it quoted the massachusetts constitution this provision in it with approval stating that's essentially what we have here in our federal government. madison was really a remarkable man. he went on to describe the separation of powers as, quote, essential precaution in favor of liberty, closed quote and alexander hamilton in federalist number 78, on the federal paper that also was written to encourage americans to support the constitution quotes the french philosopher who said, quote, there is no liberty if the power of judging not be separated from the legislative and executive powers, closed quote. the judicial branch then is limited to the interpretation and application of law. law that exist, 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 peoples 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 that, quote, the interpretation of the law is 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 no surprise that hamilton says a judge must have a, quote, flexible and uniformed adherence to the rights of the constitution, closed quote 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 experience. they had a lot of commonsense 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 litany of grievance is the assertion -- this is in the declaration when the assertion was against the king he asserted the king had, quote, made all judges dependent on his will alone for the tenure of on their offices, closed quote. that was a complaint. that was one of the things that we objected to in the way the king was handling the people in the colonies. and that was part of the declaration and when the constitution you 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. the only federal office in america that has a lifetime appointment, we ought to answer to the public, so does the president. it also specifically prohibits

congress from diminishing jewish 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, closed quote. so madison hoped that the court set apart from the advertise of public opinion would be, 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 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 leased in a capacity to annoy or injure them. it may truly be said they have neither force nor will but merely judgment, closed quote. 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 dell indicated decision on a particular issue to a particular branch. when the court finds a lack of, quote, judicially discoverable and manageable standards, closed quote, 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. judicial activism has enormous consequences for every american you see because if judges who are given a lifetime appointment and guaranteed salaries are given the power to set policy, then that is an undemocratic act because we allowed them to set policy then they cease to be accountable to the american people. the supreme court hold extraordinary power over our lives. it takes only five justices to determine what the words of the constitution mean.

you'd think it's 9. it's really just 5. 5 of the 9 agree that the constitution means this or that. it's as good -- hold your hats, it's as good as three fourth of the vote. this is a powerful thing, a supreme court justice 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 leads judges sometimes, i think -- i say they

succumb to the siren call using that opportunity they might possess given a 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 in they draw in from the air carbon dioxide, it's plant food. 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 american people regulation to control pollution in 1970s long before global warming was ever a thought, 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 that was a huge economic decision of monumental proportions. it called on an agency of the department 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'd just point out what five members of the court can do with the ruling and that was five members, four

members dissented on that case. they also have -- the supreme court, 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 dissent on every death penalty case and sought to get others to agree with them. some thought others might 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 doesn't contemplates the death penalty. and it refers to capital crimes and 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. but the question is not whether these policies are good or bad, whether you like the death penalty or not, that's a definition of opinion.

how strongly you feel 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're debating in the political arena. shouldn't that be the president and the congress who's accounted to vote these issues and vote yes and no for the american people and be accountable to them. 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 court is sort of their place and 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 enbanc saying that the pledge of allegiance is institutional because it has the words "under god" in it. actually, it appears -- it's actually never been reversed. it's been vacated in a sense 'cause the supreme court rejected on, i think, standing grounds. but 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 dangers because we're 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 on you can we curb the excess of federal power if we allow the courts to

step so far beyond the limits of their legitimate authority. how can the least of us depend on the law to deliver justice, to protect them, to steadfastly protect their liberties if rulings respect no longer objective and every single judge has the power to place his or her empathy above the law and the evidence? so with these fundamental questions in mind, i hope that the comments i make in the weeks to come will be of some value as we talk about the future of the judiciary. what the role of a judge ought to be on our highest court. and to uphold our sacred charter of inalienable rights. so let me repeat i love the american legal system. and am so much of an admirer of a 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 the president, you are, that they did follow the law and they tried to be fair. and i think the independence we give them is a factor in their fairness. it's something i will defend but there's a responsibility that comes with the independence that judges get and that responsibility is when they get that bench and they assume that power, that they not abuse it. that they use integrity. that they are objective and that they show restraint. i thank the chairman and i would yield the floor. >> the senator from illinois. >> mr. president, i've listened carefully to the statements senator sessions from alabama who is the ranking member on the

senate judiciary committee who is charged with a 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'd been elected to the united states senate. it's rare in one's public/political life to have chance to have a voice in one supreme court justice but to have a chance to be involved in 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 laws and same facts and reach different conclusions. that's why when it comes to appellate courts it's 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 just defies human experience. it's not going to happen. people read words differently. people view facts differently. and occasionally, judges faced with cases that they may never have envisioned see a need for change in our country. now, there are times when i might agree with that change and sometimes when i might disagree.

in 1954, right across the street in the supreme court, a decision was reached in brown versus board of education, 55 years ago, they take a look at the schools of america, 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 critics said that supreme court has gone too far. they had no right to reach that conclusion. well, i disagree with those critics. but some of them said they should have been strict constructionists. they should have left schools as it were. it wasn't 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 what supreme court has reached a decision which i disagree with. most recently this current court

which is dominated by more conservative members, those who fall into the so-called strict construction school had a case that came before them involving a woman. she was a woman who worked at a tire manufacturing plant in alabama if i'm not many. she spent a lifetime working there. her name was lily ledbetter and lily rose through the management ranks and was very happy with the assignment she was given at this plant. she worked side-by-side, shoulder to shoulder with many male employees. it wasn't until lily 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 assignment. 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 wouldn't receive equal pay for equal work and so she filed

a lawsuit under a federal law asking that she be compensated for this discrimination against her, the reduction in pay which she had faced and the requirement reduction which 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 the earlier cases. the earlier cases had said something that was, i think, reasonable on its face. they looked at the statute, the law, that the case was brought under, and said that lily ledbetter had a specific time after she discovered the discrimination to file a lawsuit. i believe the period was six months. i may be mistaken. i think that's a fact.

that she had six months after she discovered she was discriminated against to file a lawsuit. and lilly ledbetter said that's exactly i did when i learned i was discriminated against i filed within the statutory requirement but the supreme court across the street, the strict constructionists that they are reached a different conclusion. and their conclusion was that the law didn't mean that. the law meant that she had to file the lawsuit 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. and she had six months to file the lawsuit. 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. and so you may be working next to someone for years and never

know exactly what they're being paid. that was the case with lily ledbetter. she didn't know the man standing next to her doing the same job was being paid more. she didn't discover that until many years later so the supreme court said, mrs. ledbetter, unfortunately, you didn't file your case in time. we're throwing it out of court and they did. strict constructionists 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 the right to recover. well, in the name of lily ledbetter we shaped the law to make it abundantly clear so neither this supreme court nor any supreme court in the future will have any doubt that it's six months after the discovery of the discrimination. not after the first act of discrimination. it was one of the first bills if not the first bill that president barack obama signed. i happened to be there at the signing ceremony and standing next to him receiving the pen

for that signature was lily 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 at least had the satisfaction to know that this congress and this president would not allow the injustice created by that supreme court decision to continue. sort of the senator from alabama came here and said, you know, we don't need judges with empathy. that word has been stretched in many different directions. but if empathy means we don't need judges who don't understand the empathy in the workplace, if we would say lily ledbetter, sorry, you missed it girl, you had six months from that discovery of that first paycheck, you missed it and you're out of work if empathy would say that's a fair and not a justice result i want judges with empathy. i want them to know the real world and the practical impact of the decisions they make. i want them to follow the law and be fair