[Congressional Record Volume 140, Number 39 (Wednesday, April 13, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: April 13, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
SUPREME COURT NOMINEES
Mr. DANFORTH. Mr. President, I would like to address the Senate as a
result of the announcement made by our majority leader yesterday that
he will not be willing to be considered at this time for nomination for
Associate Justice of the U.S. Supreme Court. And I would like to speak
more generally about what that statement says about our process for
confirming Supreme Court nominees.
Now, I know that from the standpoint of this Senator because of my
own involvement with the Thomas nomination the natural reaction of
people would be, well, there he goes again talking about something that
was of particular interest in his own past. And maybe that is correct.
But I want to talk about it in context of the Mitchell decision because
it is clear to me that something has gone terribly wrong with the
confirmation process and that the role of the Senate to advise and give
consent to Presidential nominations has now reached the point where it
is undermining the very thing that it was designed to serve, namely, to
try to assure that first-rate nominees are brought forward and first-
rate people are put on the Supreme Court.
I am confident that of the Members of the Senate, exclusive of the
majority leader himself, there are 99 Members of the U.S. Senate who
believe that George Mitchell would be an absolutely outstanding Justice
of the U.S. Supreme Court in every respect. The quality of his mind,
the quality of his person, his temperament, his character, everything
that goes into a first-rate Supreme Court Justice is possessed by
Senator Mitchell. Yet the reason that was given by Senator Mitchell was
that he cannot do justice to his job as majority leader and still be a
nominee for the Supreme Court. And maybe that is correct, but if it is
correct, to me it is a very damning statement about the process that we
have erected for confirming Supreme Court nominees.
In the judgment of this Senator there is absolutely no reason why the
Senate could not do an adequate job of giving advice and consent on a
Mitchell nomination and still allow the majority leader to perform all
of the functions of a Senator and of a majority leader.
But I can understand the majority leader's analysis because what we
have created now is a system which is so long and drawn out and
elaborate that anybody facing it would have to say what am I getting
into; how can I possibly get through this; how can I get through it and
do anything else with my life?
Currently, the way in which the Senate operates and the way in which
nominees function, is that before the committee hearings are held the
nominees make office calls certainly on Members of the leadership and
members of the Judiciary Committee and often other Members of the
Senate as well. That is the nominee's call and that is the White
House's call. It is not something that is required by the Senate but it
has become part of the system and it has become something that is
expected.
I know that in the case of the Thomas nomination then-Judge Thomas
went around to more than 50 Senate offices, and it took most of the
month of July just to do that, just to make those calls. So anybody who
is now facing nomination believes that is the thing to do.
Judge Ginsburg called on me. I am not a member of the Judiciary
Committee, but Judge Ginsburg--before she went before the Judiciary
Committee--called on me. I do not know how many other calls she made.
But that is a very time-consuming thing--and in my opinion and in the
opinion of this Senator--for a Supreme Court nominee to go around
individually one-on-one and make office calls is demeaning. I do not
think that is an appropriate thing for a Supreme Court nominee to do,
and I am pointing the finger at myself because I took Judge Thomas
around, but I do not think that is right.
Then after the office calls are made then the process begins of
studying for the confirmation hearing. Now, until the mid-1930's it was
the general practice that Supreme Court nominees not be called to
testify before the Judiciary Committee. I do not know if it was never
done but generally it was not done, and between the mid-1930's and the
mid-1950's occasionally nominees would be making appearances before the
Judiciary Committee. After 1955 it became the universal practice.
However, the nature of those hearings has expanded. In 1962, Justice
White testified for a day, Justice Fortas for a day, Chief Justice
Burger for a day, Justice Blackmun for a day.
But then, after that, it began to accelerate. Justice Powell 4 days,
Judge Bork 5 days, and Justice Thomas 7 days. Of course, he had the
famous second hearing that was involved in that. But there were 5 days
of his main appearance before the committee.
The process of studying for those hearings is very, very time-
consuming, because any member of the committee can ask any question. So
what happens is that for a period of a month or so, every day the
nominees are studying huge briefing books about Supreme Court
decisions. Then they go before the committee and they are asked
questions.
It is the opinion of this Senator that the asking of questions about
jurisprudence to Supreme Court nominees is not appropriate. And the
reason it is not appropriate is not only that it takes a lot of time,
but that it jeopardizes the independence of the judiciary.
What a potential Justice is asked is to give the committee an
understanding of how the Justice would rule on a case coming before the
Court. That is the purpose of asking the question. So it is the opinion
of this Senator that that kind of extensive questioning, particularly
questioning over a period of days, about specific points of law--how do
you interpret the first amendment, how do you interpret the due process
clause, and on and on and on--all of these questions, in the opinion of
this Senator, are not only extremely time consuming, but really raise
the question of the separation of powers and the independence of the
judiciary.
And then, of course, there are the investigations into matters of
character, the FBI analysis, and the fact that in controversial
nominations there are all these various groups fanning out through the
country trying to find out whatever rumor or information they can get
on a candidate that they do not support. I think this has just gone
haywire.
We have seen that the process has become so time-consuming, so
convoluted, that the majority leader says, ``Well, I can't go through
it and still do the job of being the majority leader and getting the
President's health care program through Congress.''
I have not discussed this with the majority leader. I do not intend
to put myself into his head.
Maybe any Senator can come to the floor and say the way we are doing
this is just exactly the right way to do it. But, in my judgment it has
clearly malfunctioned. It has clearly backfired right now. It has
clearly taken out of consideration a person who would be eminently
qualified to be on the Supreme Court.
I do not think it is necessary for us to make a judgment on the
character of Senator Mitchell, to have all of these extensive
interviews and all of this investigative process. It seems to me the
judgment is made about the totality of the character of the human
being, and if we cannot judge it in this case, having served with the
majority leader for years in the Senate, then we cannot make a judgment
about anything that comes before the Senate.
So my point is, first of all, I regret that a good person has been,
in effect, taken out of consideration because of a conflict between
duties as majority leader and a Senator and what a person would have to
go through as a Supreme Court nominee.
But, second, to raise the question as to whether we are doing this in
the right way; to raise the question in the context of a Democratic
President and a Democratic Senator and a Democratic potential nominee
for the Supreme Court--something in which I have zero partisan interest
at all. None. I have no partisan interest in this whatever.
But I have seen this process, and I think it is a crazy process. I
think we should simplify it. I do not believe Supreme Court nominees
should be making office calls. I do not believe they should, in effect,
have to study for a bar exam before they go before the Judiciary
Committee. I do not believe they should be questioned for days on end
on points of law. I do not believe there should be an effort to ask
them to prejudge how they are going to decide matters or view matters
as a member of the Court. And I do not believe this extreme poring into
people's lives serves the real world interest of getting first-rate
people on the Supreme Court.
I simply wanted to raise that point to the Senate in the hope that at
some point in time we will come to a more reasonable and, I would say,
more modest way of giving advice and consent for Supreme Court
nominees.
Mr. MATHEWS addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes Senator Mathews of
Tennessee.
Mr. MATHEWS. Mr. President, I would like to take this opportunity to
congratulate my colleague from Missouri, who has just made a statement
here on the floor. I think he has put his finger on a matter that is of
utmost importance, not only to this body but to this country.
I think we are approaching a time when the procedures which we have
devised and developed as a body here to carry out our constitutional
responsibility to advise and consent are becoming so burdensome as to
discourage good people from seeking office.
I think we spend an awful lot of our time today, unfortunately,
reacting to what someone might surmise is going on in this country
rather than really dealing with the truth of what is there.
I join my colleague and say that the time is coming when we must
stand up, when we must do some things here to let good people know that
there is a way for them to serve their Government without putting them
through all sorts of demeaning exercises and processes that we devise
for our own benefit, perhaps. I congratulate the Senator from Missouri
on his statement.
____________________