[Congressional Record Volume 140, Number 60 (Monday, May 16, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                       SUPREME COURT NOMINATIONS

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
briefly on the nomination, by President Clinton, of Judge Stephen 
Breyer to the Supreme Court of the United States.
  At first appearance, Judge Breyer looks to be qualified for 
appointment to the Court. But I have been somewhat concerned as I have 
seen so many of our colleagues state at this early stage that they 
intend to vote for him, in advance of the nomination hearings and 
deliberation by the Senate and ultimately the vote of the Senate.
  Judge Breyer's nomination was submitted, announced by President 
Clinton at a news conference Friday at 6 o'clock, some 72 hours ago. 
There is a great deal yet to be done concerning the nomination. The 
Senate will consider him carefully under our advice and consent 
function, put him under a microscope and make a determination as to his 
fitness for the Supreme Court.
  The position of Justice of the Supreme Court is enormously important 
in our society, with so many decisions being handed down by a 5 to 4 
vote which have impact on the lives of virtually every American and 
sometimes worldwide. With a 5 to 4 decision, that fifth vote by a 
Supreme Court Justice has greater power than most acts of the President 
of the United States. And, unlike the President, who is elected for 4 
years or perhaps 8 years, a Justice on the Supreme Court may sit for 
two or three decades, and has enormous power over a very long period of 
time.
  A concern which I have is that when there is virtually a coronation 
in advance, the nominees are apt to answer relatively few questions. 
Since I was elected to the Senate in 1980, I have had occasion to serve 
on the Judiciary Committee for eight confirmation proceedings, and have 
noted a very definite pattern that nominees to the Supreme Court answer 
only as many questions as they really have to answer. And when there is 
general approval given in advance, and the nominee runs only risks by 
answering questions, there is an inclination not to answer very many 
questions.
  I am not suggesting, Mr. President, that in the confirmation hearings 
we ought to ask a nominee how he or she will decide a cutting edge 
question which is likely to come before the Court, but really to get an 
idea of judicial philosophy and approach to problems. I submit, Mr. 
President, that this is especially important in an era where the Court 
has become in many ways a super legislature, and really passes on 
questions of public policy, and frequently in apparent disagreement 
with congressional enactments, although the Judges would disagree with 
that statement.
  But I would refer to just a couple of cases. One is the 
interpretation of the Civil Rights Act where the Supreme Court of the 
United States, in 1971, in the Griggs case, handed down a unanimous 
opinion. This case was in effect reversed by the Supreme Court of the 
United States, in a 5-to-4 decision, in 1989 in Wards Cove as to the 
definition of employment under the Civil Rights Act.
  The Congress then had to go to work and pass an amendment to 
reinstate the rule of Griggs which the Supreme Court of the United 
States had, in effect, overruled in Wards Cove, where you had an 
interpretation by the Court which had been in effect for 18 years, 
untouched by the Congress, really a conclusive presumption that the 
Griggs interpretation coincided with congressional intent. Then the 
Supreme Court overrules that, not on constitutional grounds but on 
grounds of statutory interpretation. And that Supreme Court decision 
was changed, as I say, by the congressional enactment of the Civil 
Rights Act of 1991.

  Similarly, there had been a rule in effect for some 18 years--from, 
again, 1971 until 1989--on counseling of women under provisions of 
planned parenthood. There a regulation with obvious congressional 
approval, unchanged in some 18 years, was reversed in a Supreme Court 
decision in Rust versus Sullivan.
  So there are those strong indicators--and many, many others could be 
cited--where the Court acts as a super legislature, which is not quite 
the same as someone running for the Senate or House of Representatives 
or President to answer questions about public policy.
  But it seems to me that there is a substantial appropriate leeway for 
Senators on the Judiciary Committee to ask questions on a variety of 
important subjects. We have the question of the death penalty, where 
more than 70 percent of the American people favor the death penalty, 
where more than 70 Senators in this body--again more than 70 percent--
have supported the death penalty. Yet there are restrictive decisions 
coming from the Supreme Court, and sometimes a change of heart as to 
whether the death penalty is barred by the cruel and unusual punishment 
provision of the Constitution.
  There are important questions on freedom of religion, freedom of 
speech, and on Executive powers. I have tried, and will try again, to 
get an answer to the question delineating the President's power to 
deploy U.S. military forces, a subject of tremendous importance, 
especially considering what is now occurring in Haiti and what has 
occurred in Somalia.
  I have asked the question as to whether the Korean war was a war. And 
I prejudged the question in a sense by calling it a war. But that is 
not a question which is going to come up in the precise context of 
Korea, but as yet I have been unable to get an answer to that question 
because nominees are virtually assured confirmation by declaration of 
Senators in advance, and the nature and tenor of the nomination 
proceedings that they are virtually certain to be confirmed.
  Mr. President, there is also a concern that I would like to express 
briefly, and that relates to what appears to be a limited rule of 
prospective nominees to the Supreme Court with the same names which we 
heard about last year, hearing about again this year. I do not say that 
in any criticism or in derogation of the names which we heard, but it 
seems to me that there must be many of the best of the brightest in 
America who would qualify for the Supreme Court.
  This year we heard the name Judge Breyer, who was nominated, and came 
very close to being submitted last year; Judge Arnold of the 8th 
circuit, again this year; we heard very much about him last year; Bruce 
Babbitt, Secretary of the Interior. This brings the question to my mind 
as to why there are not more prospective nominees that we hear about.
  The Senate, as it is well known, has both the obligation and 
responsibility to consent to nominations, but also under the advice and 
consent function we have a rule to advise. And I have been giving 
thought, in discussion with some of my colleagues, to the possibility 
of the Senate creating a pool of possible nominees for consideration by 
the President.
  Obviously, it is the President's decision, and he can take them or 
leave them. But one possible scenario--and I have not fixed on any 
precise course--would be to canvas the bar associations of the 50 
States, write to the chief justices of the 50 State supreme courts, the 
chief judges of the circuit courts of appeal, the chief judges of the 
U.S. district courts, and perhaps to law schools to find a list of 
those who might be uniquely well qualified to be on the Supreme Court 
by virtue of judicial experience, but not necessarily exclusively 
judicial experience.
  We have on the Supreme Court at the present time, of the nine 
Justices, eight of them came from other courts. Justice O'Connor came 
from the Arizona Superior Court, Chief Justice Rehnquist came from the 
Justice Department. The other seven Justices all came from Federal 
courts of appeals.
  And there is a sense that we might well have some greater diversity. 
Such a pool might lead to inquiries about scholarly writing, trial 
practice, appellate practice of the kind of consideration which were 
given greater breadth to the possibility of Presidential nominations.
  In considering this matter, the situation of Learned Hand comes to 
mind, a great jurist who was never considered for the Supreme Court. A 
historical event that was widely reported comes to mind about Senator 
Borah, the chairman of the Judiciary Committee, conferring with 
President Hoover in 1930 and President Hoover showing Senator Borah a 
list of 10 prospects and him saying, ``I like number 10,'' who turned 
out to be Justice Cardoza, who had an extraordinary record on the 
appellate court of the State of New York, New York Court of Appeals. 
Also, the career of Justice Oliver Wendell Holmes, having had 20 years 
of experience on the Supreme Judicial Council of Massachusetts. I think 
such a pool might be really very advisable, providing some very 
substantial diversity.
  I personally was disappointed that the President did not move forward 
with the suggested name of Bruce Babbitt, the Secretary of the 
Interior. Bruce Babbitt would have brought diversity, as he had 
experience as a Governor, a State attorney general, a Cabinet officer, 
and a Presidential candidate. When the President had publicly disclosed 
his interest in having our distinguished majority leader, Senator 
Mitchell, that would have been a line of diversity, as was the 
suggestion of New York Gov. Mario Cuomo at some time in the past. It 
seems to me that that kind of diversity would strengthen the Court.
  I believe, Mr. President, that the actions of the U.S. Senate in 
examining Supreme Court nominees is one of our highest callings, and 
perhaps our highest calling. It is certainly true that the Supreme 
Court of the United States is the guardian of the U.S. Constitution 
and, in a sense, the Senate has a constitutional guardianship of the 
Supreme Court, because it is we who pass on their qualifications.
  I urge my colleagues not to commit in advance to Judge Breyer, or to 
anyone, in order to leave the full range of questioning available so 
that we may make an appropriate inquiry into Judge Breyer, as we have 
made inquiries into other nominees, to do the best job, and see to it 
that we have the very strongest Supreme Court that we can have and, 
hopefully, perhaps rethink some of our procedures to have as much 
guarantee as possible that the Supreme Court of the United States will 
be occupied by the best and the brightest.
  I yield the floor.

                          ____________________