Executive Session

Floor Speech

Date: Jan. 23, 2012
Location: Washington, DC
Issues: Death Penalty


Mr. SESSIONS. Mr. President, by all accounts, Judge Gerrard of the Nebraska Supreme Court is a good man with a good family and many friends, and he has done a pretty good job over the years--maybe a good job over the years--as a capable practicing jurist now on the Supreme Court of Nebraska.

I will vote against that nomination, reluctantly. I really do not want to in one sense, but his nomination raises an important issue about the duty of a judge to be faithful to the law and to commit to serve under the law and under the Constitution, as the oath of a Federal judge requires. In other words, as a judge you are a servant to the law.

You honor the law. You venerate the law. You follow the law whether or not you like it, whether or not you think it is a good idea, whether or not had you been at the Constitutional Convention in the 1700s, you would have voted for that phrase or not voted for that phrase or whether if you had been in the House or the Senate you would have worked to change the Constitution or change the law of the State of Nebraska. Those are matters that are outside the province of a judge. If judges choose to be involved in policy-setting, then they ought to invest themselves in the policy-setting branches, the legislative and executive branches.

So judges are, as Justice Roberts said so wonderfully, ``neutral umpires.'' They do not take sides in the game; they enforce the rules of the game. How those rules have been written and established and what motivation caused the Congress to pass them is not the critical issue. So there is a very troubling matter to me which reveals an activist tendency in this judge, and it was the case of State v. Moore.

The case of State v. Moore in Nebraska is very significant because it raises quite clearly these very issues. In the Moore case, Judge Gerrard took an active role as one of the members of the court. Mr. Moore had been on death row since 1980. He had confessed to murdering two people. He had appealed to the Nebraska Supreme Court three times. Three times the Nebraska Supreme Court had denied his appeals. He had quit appealing. In fact, he filed a motion and said he did not desire any more appeals. His pleading said he no longer wished to challenge his sentence, and he was being set for an execution that by law he deserved.

Judge Gerrard intervened on his own motion and stayed that execution even though no pleading had been filed. He did it on the basis that while Moore was set for electrocution, he was aware that another case that was coming up to the Supreme Court of Nebraska dealt with the constitutionality of the death by electrocution statute. Apparently the judge did not like the death by electrocution statute. But he stopped it. Technically, I am not sure that was correct. He was criticized by three members of the court, but he did that.

Then the case came before the court, this other case, the Mata case. The judge then confronted the fundamental question of whether the utilization of electrocution was a constitutional matter.

Now in Nebraska and in most States there are two types of constitutions: the U.S. Constitution and the Nebraska Constitution. As is often the case, the exact same words with regard to the death penalty are in the U.S. and Nebraska Constitutions: that the Constitution prohibits the carrying out of a death penalty by cruel or unusual means. ``Cruel and unusual'' actually is the phrase. So it must be cruel and it must be unusual to be unconstitutional, otherwise States can all carry out death penalties as they choose.

In fact, at the time the Constitution was adopted, every colony, every State that formed our Union had a death penalty. The U.S. Government had a death penalty. There are multiple references in the U.S. Constitution to the imposition of a death penalty. It says, for example, that you cannot deny a person ``life'' without due process. It makes reference to ``capital crimes,'' which are death penalty crimes. There are several, multiple references to that. Implicit in the Constitution itself is a constitutional acceptance of the ability of the Congress or the State legislatures to impose a death penalty.

The Constitution was in no way ever thought to be a document that would have prohibited all death penalty cases. But there became a movement in the middle of the last century and later that the death penalty was bad and that judges should overthrow it. Actually two judges on the Supreme Court opposed every death penalty case because they said it was cruel and unusual.

That was not the Constitution. They were allowing their personal views about the wisdom, or lack of it, of the death penalty to influence their judicial decisionmaking. How can we say the Constitution prohibits the death penalty when it makes multiple references to the death penalty? Every State and the Federal Government have been utilizing the death penalty since the time the Republic was founded.

So I am not debating the death penalty. I am not debating the death penalty. Good people can disagree. It ought to be brought up on the floor of this Congress, on the floor of the legislatures of Nebraska, Alabama, Texas, and New York, and they can decide whether they want to have one and how it will be carried out.

The Constitution does say, however, that we cannot use cruel and unusual methods of carrying out the death penalty because they understood that. They did not want people to be drawn and quartered and chopped up and things like that--burned in fires. The accepted penalty at that time was firing squad and hanging, generally. That is what was approved in most States. We still have States--at least one State today--that allows firing squad. I think we still have some that have hanging. But most States have gone more and more to lethal injection, and a number, quite a number, still have electrocution.

So the question of electrocution was brought up. The guy was defending a person who had been sentenced to die as a result of his crimes. They objected, saying electrocution was cruel and unusual in 1890. In 1890 the Supreme Court ruled that it was not unconstitutional. Then again it was ruled in 1947 that electrocution was not cruel and unusual punishment. Since that time, up until recent years, most--I would say perhaps even a majority of States--used electrocution as being less painful and more consistent with our values than a firing squad or hanging. So it was seen as a reform, a better way to carry out the severe penalty of death.

The Supreme Court of the United States has since repeatedly denied appeals to seek to raise again electrocution as being unconstitutional.

This other case came up in Nebraska, State v. Mata. It squarely challenged the constitutionality of electrocution as a method of execution. Although he acknowledged the Nebraska Supreme Court had always held that electrocution was not cruel and unusual, Judge Gerrard asserted in the Moore case that ``a changing legal landscape raises questions regarding the continuing vitality of that conclusion.''

I am not aware of anything in the landscape that would justify any change in that. I think 1 State in the United States out of 50 has held that electrocution is not appropriate. I don't know how it violates the cruel and unusual clause. I am not sure how they possibly so ruled, but they did. So it came up before this court. The Mata case came up before the court and, to sum it up, let me just say they concluded, contrary to the previous rulings of the Nebraska Supreme Court, contrary to the rulings of the U.S. Supreme Court, that electrocution amounts to a cruel and unusual punishment and eliminated and stayed the execution of two individuals, Mr. Mata and Mr. Moore.

I guess what I will say is this: We all in this body have to make a decision about whether judges make errors--which they sometimes do--and then how serious those errors are and what those errors reflect about the ability of the judge to fulfill the oath they take. The oath, remember, is to serve under the Constitution, under the laws of the United States, and to do equal justice to the rich and the poor and to follow the law, in effect, whether you like it or not.

I think this was not a little bitty matter. I think the people of the United States and judges on the Supreme Court of the United States have dealt with death penalty cases for some time, and the American people have been called upon on a number of occasions to eliminate death penalties in their States. A few have; most have not.

Mr. President, 30 minutes has been set aside for me, correct?


Mr. SESSIONS. Mr. President, it is not a little bitty matter. These matters have gone to the Supreme Court. Electrocution was passed by legislatures and voters for one reason. They thought it was a way to carry out a grim death penalty sentence in a way less painful than a firing squad and hanging. That is why they did that. It was not any more cruel and unusual but less cruel and unusual. Death is instantaneous, and it is an effective method and is consistent with our Constitution, as the Supreme Court held and as the Nebraska Supreme Court previously held.

Here we are in this body and we have heard the debates. A lot of good people with very plausible arguments--I don't agree with them, but I respect them--
say we should not have a death penalty. This is a debate we should have and talk about with the American citizens. It is not a matter for judges to effectively decide by altering the plain meaning and principles of the U.S. Constitution because they think it is not right. They are not legislators. This is a big issue around the country and people are tired of it. They say people are not happy with the judges and they don't understand the law. Well, they understand the death penalty. They have considered it. Their elected representatives have voted on it. It has been approved in most States. They expect their judges to carry out the law, unless it plainly violates the Constitution of their State or the Nation.

I just suggest that I believe this decision was a product of an ill will or a bias against the death penalty, consistent with the effort of a lot of people working around the legal system every day. I was the attorney general of Alabama, chief prosecutor in the State. I was a U.S. attorney for 12 years. So I have wrestled with these issues. I know how the deal works. Everybody in the system understands what this is.

For the Supreme Court of Nebraska to hold that electrocution violates the cruel and unusual clause of the Constitution of Nebraska or the Constitution of the United States--they said in this case, Nebraska, which has exactly the same language as the U.S. Constitution; for them to rule that way, I believe, is outside the bounds of what I am willing to accept. We have people saying the evolving standards of decency, evolving legal principles, and evolving national and international law says we ought to change. No, the American people rule and they elect their representatives and they pass laws; and judges have one obligation, which is to enforce the law, unless it is plainly contrary to the Constitution. My opinion, as someone who has been in the legislature and had to defend death penalties as the attorney general of the State of

Alabama--my opinion is that declaring electrocution to be an unconstitutional method of imposing the death penalty steps out of objective, neutral judging and evidences a plain activist tendency to promote a result.

I think it is compounded by the fact that the judge went out of his way, contrary to other judges' wishes on the court, to lead an effort to stay one execution until they could take up this case and then to rule over the Chief Judge's dissent that it was indeed unconstitutional.

Mr. Moore remains now, since 1980, even today, still on death row. People are unhappy about that. They rightly think the law is not working and that there is too much politics in it, and people are undermining duly enacted law. There was no question of this defendant's guilt. He murdered two people and he confessed to it.

That is the way I feel about this. I can see a lot of other people saying Judge Gerrard is a good man, a smart lawyer, and he will do a good job on the bench--and I hope he does--but I am not voting for judges, as I have said before, who will not establish that they are willing to follow the law even if they don't like it. Particularly, I am very reluctant to support judges who, I believe, in this most controversial area where much debate has occurred, in one form or another, take extraordinary, unlawful steps in my view, to undermine the death penalty because they don't like it.

You say: Somebody else said that may have been a mistake, but it is not disqualifying. I respect other people's opinions. I am not calling on other people to reject Judge Gerrard. As I said, by all accounts, he is a good man. I am saying I don't feel comfortable voting for someone based on a legal issue such as this that I personally dealt with over the years. I would not oppose him if he personally opposes the death penalty. That is fine. But as a judge he is required to carry it out in an effective way. We have had far too much obstruction of the death penalty, and I hope we will see an end to it and get judges on the bench who will follow the law.

I reserve the remainder of my time.