Leahy Denounces Religious Smear Campaign On Judicial Nominations

…Urges Republican Senators, White House To Condemn Demagoguery

[(WASHINGTON, Friday, April 22) -- In a speech delivered Friday morning, Senator Patrick Leahy (D-Vt.) denounced a recent smear campaign to inject religion into the judicial nominations debate.  On Sunday, Senate Majority Leader Bill Frist is planning to participate in the Family Research Council’s (FRC) “Justice Sunday: Stop the Filibuster Against People of Faith” telecast.  Leahy, the ranking Democratic member of the Senate Judiciary Committee, urged Republican senators, leaders and the White House to condemn such ‘religious McCarthyism.’ Below is Leahy’s floor speech.]

Senator Patrick Leahy
Senate Floor Remarks
On Republicans’ Exploitation of Faith in Judicial Nominations
April 22, 2005

I spoke at the beginning of the week about the alarming rise of religious McCarthyism.  I hoped that by drawing attention to this situation the Majority Leader and other Republican leaders would speak out against any campaign that improperly characterizes Senators as being, quote, “against people of faith.”  That demonizing of Senators and their motives has no place in America, let alone in debate among Senators.  That is a slur and a smear.  It is untrue and every Republican Senator knows it.  They should denounce such a campaign that is based on bigotry and fueled by demagoguery. 

Sadly, they refuse to do so and, instead, the Majority Leader will apparently act in support of such a campaign this weekend.  The upcoming telecast to incite congregants by the false charge that those who oppose judicial activists are “anti-Christian” or “anti-faith” is wrong, divisive and destructive.  That Republican officials will lend support to that effort through their silence, rather than denounce it, is disturbing and disappointing. 

I had previously called upon the White House to denounce a similar smear campaign launched more than a year ago.  When a lone Republican Senator disavowed those outrageous advertisements, I thanked him and praised him publicly.

Dividing the American people along religious lines is wrong.  Smearing political opponents as “anti-faith” is despicable.  Apparently some will stop at nothing and stump to any level.  No scurrilous charge is too coarse; no baseless accusation is too outlandish.  When a few of us attended the funeral of Pope John Paul II in Rome as part of the official Senate delegation recently, Democrats – but not Republicans -- were castigated for not being present in Washington.  When we explain in public session the basis on which we have decided to oppose a nomination that we do not feel merits a lifetime appointment to the federal bench, the judicial activism we have catalogued about the nomination is ignored and we are smeared as “anti” this or “anti” that.  

I thank the many religious leaders who have come forward this week to uphold America’s great traditions of respecting faith, honoring faith and, ensuring that the constitutional prohibition against any religious test for public office be strictly observed.  Christian leaders from a variety of denominations, Muslim leaders and Jewish leaders have joined together to reject these disgraceful and polarizing efforts of a few partisans injecting religion in the discussion of judicial nominations.  They have publicly denounced the efforts of the religious demagogues making slanderous charges in a win-at-all-costs bid to rile the passions and further divide Americans from one another.  I am grateful for their voices.  We need less division, not more.  We need to work together more not less.  

I share the disappointment of the more than 400 religious leaders who have written Senator Frist urging him “to repudiate those who misuse religious for political purposes and who impugn the faith of any who disagree with them.”  All of us need to, as these religious leaders put it, “repudiate the message of divisiveness and religious manipulation.”  The Reverend Dr. C. Weldon Gaddy, President of The Interfaith Alliance, also recently wrote to Senator Frist to warn against transforming “religion by baptizing it as a disciple of partisan politics.”  Abraham Foxman, National Director of the Anti-Defamation League, reminded Senator Frist:  “Religious liberty has flourished in our nation precisely because Americans have been steadfast in their commitment against sowing religious discord as means to achieve political success.”

I also thank the distinguished leader of the Religious Action Center of Reform Judaism, Rabbi David Saperstein, for his statement.  Rabbi Saperstein notes that with respect to the upcoming broadcast in which Senator Frist will be lending his support: 

“The telecast is scheduled to take place on the second night of the Passover holiday, when Jews around the world gather together to celebrate our religious freedom.  It was in part for exactly such freedom that we fled Egypt.  It was in part for exactly such freedom that so many of us came to this great land.  And it is in very large part because of exactly such freedom that we and our neighbors have built a nation uniquely welcoming to people of faith—of all faiths.”

My Irish and Italian grandparents, like so many others, came to this country seeking a better life for their families-- not just a better job but the freedoms that have always been so much a part of America’s great attraction.  It has taken time and pain for us to realize as a Nation that dream of religious freedom and tolerance.  I remember my parents talking about days I thought were long past, when Irish Catholics were greeted with signs that told them they need not apply for jobs.  Italian Catholics were told that they and their religious ways were not wanted.   That is what my grandparents experienced and my parents saw.  The smears we are seeing today mock the pain and injustice that so may American Catholics endured.   We have come too far to turn back to the darkness of intolerance.

Partisans are these days seeking to rekindle the flames of bigotry for short-term political gain.  That is more than just wrong, it is despicable.  To raise the specter of religious intolerance in order to try to turn our strong, independent federal courts into an arm of a political party is an outrage.  It is shocking that some would cavalierly destroy the independence of our federal courts and with it the best protection Americans have of our freedoms.

This tactical shift follows on the rhetorical attacks on judges over the past few weeks in which federal judges were likened to the KKK and “the focus of evil.”  Over the last few weeks we have heard language about Stalinist solutions to problems and for mass impeachments.  Last week the Senate Democratic leadership called upon the President and the Republican leadership of Congress to denounce the inflammatory statements against judges.  This week I renew my call to all Senators and, in particular, to Republicans, to denounce the religious McCarthyism that is again invading this debate.

I am saddened to see Senators stay silent when they should disavow these abuses. Why Republicans do not heed the clarion call that Senator Danforth, an Episcopalian minister, sounded a few weeks ago, I do not know.  The demagoguery and divisive politics being so cynically used by supporters of the President's most extreme judicial nominees need to stop.  These smears are lies, and like all lies they depend on the silence of others to live, and to gain root. It is time for the silence to end. The Bush Administration has to accept responsibility for the smear campaign and end it. 

This kind of religious smear campaign hurts the whole country.  It hurts Christians and non-Christians.  It hurts all of us, because the Constitution requires judges to apply the law, not their personal views.  Remember that all of us, no matter what our faith -- and I am proud of mine -- are able to practice our religion as we choose or not to practice a religion.  That is a fundamental guarantee of our Constitution.  The Constitution’s prohibition against a “religious test” in Article VI is consistent with that fundamental freedom.

All Americans should understand that the Constitution is there to protect us, and it is the protection of the Constitution that has allowed this country to evolve into a tolerant nation. Those who would try to drag us back into religious intolerance, for short-term political gain, subvert the Constitution, and damage the country.

By their false logic, the 205 judicial nominees nominated by President Bush who Democratic senators have helped to confirm would seem not to be people of faith.  That is as false and ridiculous on its face as are the slurs being insinuated against those who have opposed the few other nominees who have not been confirmed.   This smear of good men and women as “against faith” is wrong.  This slander is laden with falsehoods and permeated by the smoke and mirrors of partisan politics. 

Those who hurl these false charges never mention that the same Senators they are slandering have supported hundreds of nominees who are people of faith.  They never hesitated to stoke the flames of bigotry, and to encourage their supporters to continue the smear in cyberspace, or in the pages of the nation’s newspapers or through direct mail.   Maybe this slander is the only thing that tests well in their political polls, so that even though untrue it is the one thing they can agree upon.  This is the equivalent of the “weapon of mass destruction” justification for attacking Iraq.  It is not true, but it is convenient.

Not only must this bogus religious test end, but Senators should denounce the launching of the nuclear option, the Republicans’ precedent-shattering proposal to destroy the Senate in one stroke, while shifting more power over the Senate to the White House.  I would like to keep the Senate safe and secure and in a “nuclear free” zone.  The partisan power play Senate Republicans are now likely to employ will undermine the checks and balances established by the Founders in the Constitution.  It is a giant leap toward an unfettered Executive controlling all three branches of the Federal Government.  It not only will demean the Senate and destroy the comity on which it depends; it also will undermine the strong, independent federal judiciary that has protected the rights and liberties of all Americans against the overreaching of the political branches. 

Our Senate parliamentarian and our Congressional Research Service have said that the so-called “nuclear option” would go against Senate precedent.  Do Republicans really want blatantly to break the rules for short-term political gain?  Do they really desire to turn the Senate into a place where the parliamentary equivalent of brunt force is what prevails?

The recently constituted Iraqi National Assembly was elected in January.  In April it acted pursuant to its governing law to select a presidency council by the required vote of two-thirds of the Assembly, a supermajority.  That same governing law says that it can only be amended by a three-quarters vote of the National Assembly.  Use of the “nuclear option” in the Senate is akin to Iraqis in the majority political party of the Assembly saying that they have decided to change the law to allow them to pick only members of their party for the government and to do so by a simple majority vote.  They might feel justified  in acting contrary to law because the Kurds and the Sunni were driving a hard bargain and because governing through consensus is not as easy as ruling unilaterally.  It is not supposed to be, that is why our system of government is the world’s example.

If Iraqi Shiites, Sunni and Kurds can cooperate in their new government to make democratic decisions, so can Republicans and Democrats in the United States Senate.  If the Iraqi law and Assembly can protect minority rights and participation, so can the rules and United States Senate.  That has been the defining characteristic of the Senate and one of the principal ways in which it was designed to be distinct from the House or Representatives.

This week, the Senate debated and passed an emergency supplemental appropriations bill to fund the war efforts in Iraq and Afghanistan.  The justification for these billions of dollars being spent each week is that we are seeking to establish democracies.  How ironic that at the same time we are undertaking these efforts at great cost to so many American families, some are seeking to undermine the protection of minority rights and checks and balances represented by the Senate through our own history. 

This week, the Secretary of State said in Moscow that “the centralization of state power in the presidency at the expense of countervailing institutions like the Duma or an independent judiciary is clearly very wrong.”  Just as those developments undercut democracy in Russia, so, too, our American democracy is undercut by the concentration of power in the executive, removing checks and balances, and undermining the independence of the federal judiciary.  It is ironic given that President Bush and Secretary of State Rice speak so eloquently about the fundamental requirements of a democratic society when they meet with President Putin of Russia, that the Bush Administration and Senate Republicans are intent on employing the “nuclear option” to consolidate power in this presidency in this country. 

The President has in his own words acknowledged that democracy relies on the sharing of power, on checks and balances, on an independent court system, on the protection of minority rights, and on safeguarding human rights and human dignity.  The “nuclear option” is in direct contradiction to maintaining those values and those components of our democracy.   Just as Abu Ghraib and other abuses make it more difficult for our country effectively to condemn torture and abuse when we speak to the rest of the world, the “nuclear option” used as a partisan effort to consolidate power in a single political party and institution will make all the lectures on democracy we give to leaders of other countries ring hollow.

I have spoken of a group of Russian parliamentarians who came to see me to talk about our federal judiciary.  Like other representatives of emerging democracies around the world, they asked, “Is it true that in the United States the government might be a party in a lawsuit and that the government could lose?”  I said, “Absolutely right.” They said, “People would dare to sue the government?”  I said, “We have an independent judiciary, yes, they could.”  They said, “Well, if the government lost, you fire the judges, of course?” I said, “No, they are an independent judiciary.”   This amazes people in other parts of the world, that people who disagreed with the government could actually go to court, bring a challenge and seek redress even if it meant the government lost.  Chief Justice Rehnquist is right to refer to our independent judiciary as the crown jewel of our democracy.  It is dazzling. 

Judicial fairness and independence is also essential if we are to maintain our freedoms.  I say to Mr. Delay and others, stop slamming the federal judiciary. We do not have to agree with every one of their opinions.  Let us respect their independence.

When the United States Supreme Court decided the presidential election in 2000, I thought that the 5-4 majority engaged in an incredible and overreaching act of judicial activism.  I, nonetheless, called for Americans to respect the opinion of the Court.  I attended the argument of Bush v. Gore with my Republican counterpart, in order to show the country that we had to get along and work together.  Democrats did not impeach Justice Scalia when we wholeheartedly disagreed with his action. 

Part of upholding the Constitution is upholding the independence of the third branch of government.  One political party or the other will control the presidency. One party or the other will control Congress.  No political party should control the judiciary.  It should be independent of all political parties.  That was the genius of the founders of this country. It is the genius that has protected our liberties and our rights for well over 200 years.  It is the genius of this country that will continue to protect us unless we allow some to destroy it for short-term political gain.  It would be a terrible diminution of our rights if we were to remove the independence of our federal judiciary.  That would do things that no armies that have marched against us have ever been able to do.  If you take away the independence of our federal judiciary, then our whole constitutional fabric unravels.

I ask that copies of the letter sent by hundreds of religious leaders to Senator Frist, the letter from The Interfaith Alliance to Senator Frist, the statement by the National Council of Churches, the letter from the Anti-Defamation League to Senator Frist and a statement from Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism be included in the Record.

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