[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.

                          ____________________