act, why after all this time should it still just beat narrowed to certain states? why not apply it to everyone so all states have to submit their redistricting? >> the question is should all districts have to resubmit their applications? because most districts do not show a history of segregation. for example, my state of vermont is considered one of the fairest among the fairest in the country. we do not have racial imbalances in vermont. we are probably the most homogeneous state in the country. what we do is we know those areas where there have been problems. and new areas come up with problems and then the decision will be made to submit a. it is done in a very careful way, and it has worked very

well. most places have to submit their program here and don't mind. i have had people tell me it is a way of keeping us honest. i go back to the days of brown versus board of education and other segregation -- and others when segregation was made illegal. i remember when i was 18, i was getting ready to go to my junior year in college and i came down here with my parents to washington and i saw for the first time signs that said -- sign that said whites only. my son in law who is african- american remembers even though it was illegal growing up in richmond, there were places he could not go. it is not only getting rid of this segregation, it is getting d rid ise facto segregation. -- it is getting rid of de facto

segregation. >> anyone else? identify yourself. >> [inaudible] [inaudible] i am wondering if within the context of the judiciary committee, if there will be any willingness to address some of the issues that have happened over the last eight years and the last administration as far as human rights abuses around the world. and historically, the u.s. has not tried to put its own citizens in that context for accountability on human rights issues around the world. at the same time, we have tried to hold other countries accountable for their actions. i am wondering what the judiciary will do in terms of the last eight years in the abuses that have been done by people in this country. >> i think our subcommittee on

human rights will be doing a lot of fact, but a lot of it is by our own example. closing guantanamo bay prison is going to be one of the best examples we can make [applause] ] i think a president who is not afraid to talk not only about the greatness of america, there are so many things great about our country, but also be willing to talk about where we have made mistakes. that is an example in countries that don't ever want to admit their own mistakes. i think we lead by example. in the past we were able to lead by example. but we have to restore our own principles. i had this fight over the department of justice when this last administration, as chairman of the senate judiciary committee. i remember being extraordinarily

frustrated, maybe that is an understatement. then attorney general gonzalez, the manipulation of prosecution. i told him about when i was in law school i was interviewed by the former attorney general. he had brought in a few students trying to get as to come to the department of justice. i remembered saying to that attorney general, and you know who i am talking about. i said to the attorney general, would you allow interference from the white house? and he said under no circumstance. i have explained to the president that he their need nor anyone from the white house can ever -- neither he nor anyone from the white house can get involved in prosecutions. i said to him thank-you,

attorney general robert kennedy. that means a lot to me. he ended up prosecuting a man who was vital to his brother's election as president, but demand was going to prosecute him. he did say when his staff ask that this was going to a problem, he said i will probably not go to many family reunions. but that is the kind of independence there should be. let me just say one more thing. i was very fortunate to be a law student in washington during the time of john kennedy, but i remember the senate when my wife of 47 years when she was working as a nurse to put me through law school. we stood on pennsylvania avenue at the funeral of john kennedy, and i remember the outpouring in this country and so many people realizing too late what they had lost. i remember the great opportunity of seeing this, and the

enthusiasm of young people coming in to do things for the government. that is why i gave up a position in a law firm to become a prosecutor. i wanted to give something back. you have that same opportunity. think of what an exciting administration is. study hard and learned a long, but when you do so don't forget one thing. -- study hard and lenrn the law. as lawyers will have a privileged position in the society. the more the privilege amor the obligation, the more you have to do for others. -- the, more the thethe more the obligation. do things that make you a part of the community, not isolated from the community. you will be a better person. thank you very much. [applause] >> ladies and gentlemen, i join me in thanking senator patrick leahy.

thank you. [applause] >> about six years ago rick bitter ginsberg was a lecturer -- ruth bader ginsburg was a lecturer, and she talked about how lonely it was to be a woman on the supreme court bench, so i know he will do the right thing. i also have to tell you our students last year provided 85,000 hours of legal services to the most vulnerable d.c. residents through our critical program, which is the most extensive in the country. they are here to make a change. thank you, senator leahy. you rock. [applause]

>> senator's remarks on the role of a federal judge. we will hear from republican senator, jeff sessions, ranking member of the senate judiciary committee, and dick durbin of illinois. this is almost 40 minutes. a new justice to the supreme court of the united states brings to our minds a core question both for the senate and the american people, than is what is the proper role of a federal judge in our republic? answering this question is not simply an academic task. it's fundamental to what we will be doing here. how the american people and their representatives and their senators, the ones who have been delegated that responsibility, answer this question impacts not only the future of our judiciary, but i think future of our legal system and the

american experience, really. i would just say that from traveling the world as part of the armed services committee, i'm more convinced than ever before that the glory of our american experience, our liberty and our prosperity is based on the fact that we have a legal system you can count on. and when you go to places like afghanistan or iraq or pakistan or the west bank and -- and you see people -- bosnia, and they just can't get a legal system working. and it does not work and people are not protected in their persons from attacks and their property is not protected. contracts often aren't enforced properly, and that just demoralizes countries and it makes it very difficult for them to progress. so i'm so proud of the american legal system. it's something that we inherited. we built upon and it is the bull

work for our liberty and prosperity. so we ask this 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 innocence is the judiciary to be a modest one applying the policies that others have enacted or can it, the judiciary, create new policies that are -- that a judge may desire or think is good? and when the 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 -- or 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 rendering of the constitution serves as a check against the intrusion of government on the rights of human kind. the founders established a government that was modest in scope and limited in its

authority. nor to -- they bounded the government by a 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 itself 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 union." to the speeple established it and they granted certain powers to the -- the people established it and they granted certain powers to the government. they were limited and enumerated and set forth. but our founders knew these

limitations, history being what it is, standing alone were not enough. so 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 vested in a congress of the united states." close quote. article 2 declares -- quote -- "the executive power shall be vested in a president of the united states." close quote. an article 3 declares -- quote -- "the judicial power of the united states shall be vested in one supreme court." close quote. and such other courts as the congress creates.

so these words, i think, are unambiguous. the judiciary possesses no power to make law or even enforce law. in federalist 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." close 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." 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