[Congressional Record Volume 143, Number 155 (Friday, November 7, 1997)]
[Senate]
[Pages S12023-S12028]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE RESOLUTION 146--ESTABLISHING AN ADVISORY ROLE FOR THE SENATE IN 
                THE SELECTION OF SUPREME COURT JUSTICES

  Mr. SPECTER (for himself and Mr. Byrd) submitted the following 
resolution; which as referred to the Committee on the Judiciary:

                              S. Res. 146

       Whereas, Article II, Section 2 of the United States 
     Constitution authorizes the President to appoint Judges of 
     the Supreme Court ``by and with the Advice and Consent of the 
     Senate'';
       Whereas, the Senate has exercised its ``Consent'' function 
     with due diligence through extensive hearings and 
     deliberation prior to voting on nominees to the Court;
       Whereas, the Senate has not historically exercised its 
     ``Advice'' function with the exception of a limited 
     consultation with the President on the selection of a nominee 
     in advance of the President making such a nomination;
       Whereas, there is no systematic method for selecting 
     Supreme Court nominees, with the

[[Page S12024]]

     President having historically proceeded on an ad hoc basis to 
     consider a limited number of individuals before making his 
     nomination;
       Whereas, there is an enormous pool of legal talent who 
     could become Supreme Court nominees;
       Whereas, in one case where the Senate exercised influence 
     on the selection of a nominee, it was to replace Justice 
     Oliver Wendell Holmes with Justice Benjamin Cardozo;
       Whereas, the importance of having the best and brightest 
     judges is reflected in the fact that the Supreme Court has 
     decided numerous significant cases by a one-vote margin; and
       Whereas, it would be useful to create a pool of recognized 
     candidates of superior quality for consideration by the 
     President; Now, therefore, be it
       Resolved, That the Senate should better fulfill its 
     ``Advice'' function under Article II, Section 2 by having the 
     Senate Committee on the Judiciary establish a pool of 
     possible Supreme Court nominees for the President to 
     consider, based on suggestions from Federal and State judges, 
     distinguished lawyers and law professors, and others with a 
     similar level of insight into the suitability of individuals 
     considered for appointment to the Supreme Court.

  Mr. SPECTER. Mr. President, I have sought recognition today to 
discuss an idea which has the potential to have a major impact on the 
rule of law in the United States by having the U.S. Senate exercise its 
advise function under the advise and consent clause of the Constitution 
to advise Presidents on who the nominee should be for the Supreme Court 
of the United States.
  The Supreme Court of the United States, as we all know, is the 
ultimate arbiter of determining what the law will be. In the session 
which ended last June, the Supreme Court of the United States handed 
down historic, really monumental decisions on dying, religion, speech, 
due process, States rights, congressional power, among many other 
decisions.
  The Constitution of the United States established the Congress, in 
article I, the President in article II, the Court in article III, with 
an implicit suggestion that the legislative body was preeminent, the 
executive second, and the judiciary third.
  But we know since the decision of the Supreme Court of the United 
States in Marbury versus Madison, the Supreme Court of the United 
States has been the preeminent institution, because the Supreme Court 
of the United States has the last word.
  The Supreme Court Justice, the late Chief Justice Charles Evans 
Hughes, said that the Constitution is what the Supreme Court says it 
is.
  We talk a great deal about the legislature having the power to make 
the laws and the courts having the limited power to interpret the laws, 
but the reality is, the brutal fact of life is that the Supreme Court 
of the United States makes the avant-garde decisions on the periphery 
and on the horizons of the law.
  We can do better, I submit, in the deliberations, the decisions of 
the Supreme Court of the United States by a closer focus on the quality 
of those men and women who go to the Supreme Court.
  I expect our distinguished colleague, Senator Byrd, to join us on the 
floor in a few minutes to make a few comments about this idea, as the 
permanent resident scholar of the Senate and a great authority on 
constitutional law and a recent losing litigant in the decision of the 
Supreme Court of the United States in the line-item veto case, where 
Senator Byrd, along with Senator Moynihan, Senator Hatfield, and 
Senator Levin challenged the line-item veto in the case of Raines 
versus Byrd.
  The Supreme Court of the United States, in that decision, ruled that 
Senator Byrd and the other Senators did not have standing to challenge 
the constitutionality of line-item veto--a curious decision. In my 
opinion, who would have greater status to challenge the 
constitutionality of line-item veto than sitting Senators, especially 
the existing chairman of Appropriations, Senator Hatfield, and the 
former chairman of Appropriations, Senator Byrd? But that was the 
ruling of the Supreme Court.
  When we take a look historically, Mr. President, at what the Supreme 
Court has decided, and in many, many cases by 5 to 4 decisions, it is 
really astonishing the authority and the power wielded by the Supreme 
Court of the United States on the lives of every man, woman and child 
in this country, in a fundamental sense, more so than what the Congress 
does, and in an equally fundamental sense, more so than what the 
President does and the bureaucracy of the United States.
  In the famous Lochner versus New York case in 1905, the Supreme Court 
struck down an early attempt at labor regulation by holding that a law 
limiting bakers to a 60-hour workweek violated the liberty of contracts 
secured by the due process clause of the 14th amendment. It was a 5-4 
decision holding up the efforts of the legislative branch to limit the 
workweek to 60 hours in the interests of public welfare.
  In Hammer versus Dagenhart in 1918, the Supreme Court, again by a 5-4 
decision, struck down a labor law. This time the Keating-Owen Federal 
Child Labor Act, on the grounds that the commerce clause did not give 
Congress the power to completely forbid certain categories of commerce.
  In a celebrated decision, Furman versus Georgia in 1972, the Supreme 
Court of the United States, again by a 5-4 decision, struck down the 
death penalty provision under the cruel and unusual punishment clause 
of the eighth amendment.
  We have had a series of very controversial decisions where the Court 
has imposed seriatim limitations on what States may do by way of 
imposing the death penalty.
  In 1982, in Plyler versus Doe, the Supreme Court, again by a 5-4 
decision, invoked the equal protection clause of the 14th amendment to 
strike down a Texas statute which denied State funding for the 
education of illegal immigrant children and authorized local school 
boards to deny enrollment to such children.
  Again in a 5-4 decision in Webster versus Reproductive Health 
Services in 1989, the Supreme Court, in a case widely viewed as a 
retreat from Roe versus Wade, upheld various restrictions on the 
availability of abortion, including a ban on the use of public funds 
and facilities for abortions, and required viability testing after 20 
weeks. Again, on a 5-4 decision in 1990 in United States v. Eichman, 
the Court invalidated State and Federal laws prohibiting flag 
desecration on the grounds that they violated the first amendment.

  In Adarand versus Pena, 1995, the Court held that Federal racial 
classifications like those of a State must be viewed under strict 
scrutiny standards.
  In the course of the past 5 years, on decisions from 1993-1997, there 
have been 74 decisions of the Supreme Court of the United States by a 
5-4 decision.
  Mr. President, when there is a vacancy in the Supreme Court of the 
United States, there is no existing systematic way for the selection 
process to occur with respect to the Senate involvement under the 
advice section of the Advice and Consent Clause. We do know 
historically that when Justice Oliver Wendell Holmes retired in 1931, 
there was unique concern about who his replacement should be and that 
was because of the unique status which Justice Holmes had on the life 
of the law; the author of ``Common Law'' in 1881, member of the Supreme 
Judicial Court of Massachusetts for 20 years from 1891 to 1901, and a 
member of the Supreme Court of the United States for 30 years, until 
1931, the author of perhaps the most brilliant decisions on clear and 
present danger, a Justice extraordinarily gifted.
  When he was set to retire, there was unusual public concern about who 
his replacement would be. President Hoover was reluctant to appoint a 
New Yorker when many people suggested Benjamin Cardozo, a very 
distinguished judge on the court of appeals in the State of New York. 
The chairman of the Judiciary Committee, George W. Norris, made an 
effort to persuade the President that Benjamin Cardozo ought to be the 
replacement for Oliver Wendell Holmes, but it was the chairman of the 
Foreign Relations Committee, William E. Borah, who is historically 
credited with making the critical suggestion when President Hoover 
handed Senator Borah a list on which he had ranked individuals whom he 
was considering for nomination in descending order of preference. The 
list contained 10 names, and the name on the bottom of the list was 
Benjamin Cardozo. The Senator looked at the list and replied, ``Your 
list was all right, but you handed it to me upside down.'' And 
President Hoover finally conceded, even though reluctant to appoint a 
Democrat and even though reluctant to

[[Page S12025]]

appoint another nominee from the State of New York. Benjamin Cardozo 
was appointed on February 15, 1932, and the nomination won instant and 
unanimous approval by the U.S. Senate.
  In modern times, we have been very diligent in the exercise of our 
consent function. The hearings in the Judiciary Committee have focused 
enormous public attention when the nominees come forward because at 
that point in time there is an awareness of the importance of the 
Supreme Court. The decisions which come down, and the 74 decisions 
which have come down in the last 5 years 5-4, really do not create much 
of a public ripple, do not attract very much public attention, even 
though these decisions are of enormous, enormous importance.
  Because of this background, Mr. President, it is my thinking that the 
Senate ought to give consideration to establishing a panel of 
prospective Supreme Court nominees for submission to the President 
under our advice function, under the Advice and Consent Clause. 
Obviously, it is a matter that the President can take or leave, but at 
least we ought to make that pool available.
  I advance this in the closing days of the first session of the 105th 
Congress so that our colleagues can think about it over the intervening 
several months, and I will seek cosponsors, seek advice from my 
colleagues. I have talked it over with a number of the Members of the 
Senate, including members of the Judiciary Committee and the 
leadership. There has been a very responsive note about it. I have 
talked to some on the Supreme Court of the United States. The effort 
would be to try to diversify the background. Few would know, and many 
would be surprised to learn, that of the nine Justices on the Supreme 
Court of the United States, eight of them came from prior judicial 
appointments.
  From time to time when there is a suggestion that somebody be 
nominated who has a broader background--perhaps as a former Governor, 
perhaps as a former Cabinet officer, with more background--there is 
some reluctance. It is safer to appoint someone who has been on a 
court. It may well be, I think it is true, that the country would be 
better served by having a Supreme Court which had a more diverse 
background. One thought would be to ask for suggestions from, say, the 
chief judges of the Federal circuit courts of appeals to suggest 
individuals whom they know in their circuit--distinguished lawyers, 
distinguished professors, people from all walks of life; or to ask the 
chief judges of the U.S. district courts; or the chief justices of the 
supreme courts of the various States; or a cross-sampling of judges; or 
the bar associations of the States; or the American Bar Association; or 
from the public at large.
  Then the Judiciary Committee might well establish a practice--and 
this is a matter of flexibility--where we would inquire into the 
backgrounds of the individuals and compile a pool of prospective 
Supreme Court nominees. There are thousands of lawyers at this moment 
in America who would love to be judges, and all of them would love to 
be Justices of the Supreme Court of the United States as a very high 
honor and an opportunity to serve in a very, very important position. 
There is enormous legal talent in America, and very little of it, 
necessarily so, is called to the attention of the President of the 
United States when a vacancy occurs. From time to time you hear about a 
nomination and somebody was considered, and the next time a vacancy 
occurs that person is pretty much automatically put into the spot.
  I think it is not betraying the confidence to retell a story about 
Senator Howard Baker, our distinguished majority leader who later 
became chief of staff to President Reagan. When Justice Potter Stewart 
left the bench in 1987, Senator Baker said to President Reagan, ``I'll 
prepare a list of possible replacements for the Supreme Court of the 
United States.'' According to Senator Baker, President Reagan 
responded, ``Do you think you could put Judge Bork on the list?'' 
rather an interesting comment, perhaps even a curious comment, coming 
from the President of the United States. Of course he had the power to 
make the determination, certainly more than the power to decide who 
would be on the list among those who would be considered.
  So I advance this idea, Mr. President, as I say, in the closing days 
of this session, with my stated intention to discuss the matter further 
with my colleagues in an effort to develop more ideas as to how we 
might function and how we might activate and motivate the advice 
function of the Advice and Consent Clause.
  I ask unanimous consent that a very brief summary statement of the 
kernel of this idea be printed; a form of the resolution be printed 
with the caveat that it is not intended to be final but a suggested 
form; and that a listing of the Supreme Court decisions decided by 5-4 
from 1994, 1995 and 1996--since I do not want to take the time to put 
them in the Record at this time--be printed, showing the tremendously 
important matters which are decided by a single Justice having such a 
profound impact on the law in the United States.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Summary Statement

       I suggest to my Senate colleagues that we consider 
     exercising our constitutional ``advice'' function under the 
     ``advice and consent'' clause by establishing a panel of 
     possible Supreme Court nominees for consideration by the 
     President when a vacancy occurs.
       There is no doubt about the great power exercised by the 
     Supreme Court since the Court itself decided in Marbury v. 
     Madison that it had the last word on interpretation of the 
     relative powers of the Congress, the Executive Branch, the 
     states and disputes between any parties who sought a 
     constitutional adjudication.
       The Supreme Court has the final say on what happens from 
     conception to death.
       In the last week of this June, the Court handed down 
     historic/monumental decisions on dying, religion, speech, due 
     process, states rights and congressional power. Several of 
     the cases were decided by a single justice on a 5 to 4 vote. 
     One case, following two other decisions in the past 2 years, 
     reversed six decades of firmly established constitutional 
     authority on the supremacy of federal laws over states rights 
     under the commerce clause.
       Without disparaging the Court's current personnel, it is 
     worth noting that seldom are the justices compared to Oliver 
     Wendell Holmes, Louis Dembitz Brandeis or Benjamin Cardozo.
       Wile some nominees get strict scrutiny during the 
     confirmation process, the Senate has traditionally been AWOL 
     on its constitutional responsibility for ``advice.''
       For the Supreme Court especially, we should seek the best 
     and brightest.
       To create a panel of the best and brightest, I suggest we 
     call on State Supreme Court Chief Justices, Chief Judges from 
     the 13 Federal Courts of Appeals, Chief Judges from the 94 
     Federal District Court panels, academic and lawyers' 
     associations and others to make suggestions. The Judiciary 
     Committee could then review and evaluate those suggested for 
     submission of a panel to the President.
       Frequent complaints are heard about nominations to satisfy 
     a specific constituency. With sufficient early outreach, we 
     can get diversity in the best and the brightest without 
     accepting lesser qualifications.
                                  ____


                        Supreme Court Decisions

                           october 1996 term

       Abrams v. Johnson 66 USLW 4478 (1997).
       Opinion: Kennedy, Rehnquist, O'Connor, Scalia, Thomas.
       Dissent: Breyer, Stevens, Souter, Ginsburg.
       Holding: Georgia's congressional districting plan, imposed 
     by a federal district court after the legislature deadlocked 
     and was unable to adopt a new districting law in conformity 
     with the Supreme Court's ruling in Miller v. Johnson (1995), 
     is valid.
       Agostini v. Felton 65 USLW 4524 (1997).
       Opinion: O'Connor, Rehnquist, Scalia, Kennedy, Thomas.
       Dissent: Souter, Stevens, Ginsburg, Breyer.
       Holding: The First Amendment's Establishment Clause does 
     not bar use of public school teachers in parochial schools to 
     provide remedial education to disadvantaged children pursuant 
     to Title I of the Elementary and Secondary Education Act of 
     1965.
       Camps Newfound/Owatonna v. Town of Harrison 117 S.Ct. 1590 
     (1997).
       Opinion: Stevens, O'Connor, Kennedy, Souter, Bryer.
       Dissent: Scalia, Rehnquist, Thomas, Ginsburg.
       Holding: Maine's property tax law, which contains an 
     exemption for charitable institutions but limits that 
     exception to institutions serving principally Maine 
     residents, violates the ``dormant'' Commerce Clause as 
     applied to deny exemption status to a nonprofit corporation 
     that operates a summer camp for children, most of whom are 
     not Maine residents.
       Commissioners of Bryan County v. Brown 117 S.Ct. 1382 
     (1997).
       Opinion: O'Connor, Rehnquist, Scalia, Kennedy, Thomas.
       Dissent: Souter, Stevens, Breyer, Ginsburg.

[[Page S12026]]

       Holding: The county is not liable under 42 U.S.C. Sec. 1983 
     for personal injury resulting from the use of excessive force 
     by a police officer who had been hired in spite of an arrest 
     record for various misdemeanors that included assault and 
     battery, resisting arrest, and public drunkenness.
       Glickman v. Wileman Bros. & Elliott, Inc. 65 USLW 4597 
     (1997).
       Opinion: Stevens, O'Connor, Kennedy, Ginsburg, Breyer.
       Dissent: Souter, Rehnquist, Scalia, Thomas.
       Holding: A requirement imposed by marketing orders 
     promulgated under authority of the Agricultural Marketing 
     Agreement Act of 1937 that California fruit growers finance 
     generic advertising does not offend the First Amendment.
       Idaho v. Coeur d'Alene Tribe 65 USLW 4540 (1997).
       Opinion: Kennedy, Rehnquist, O'Connor, Scalia, Thomas.
       Dissent: Souter, Stevens, Ginsburg, Breyer.
       Holding: The Tribe's action against the State for a 
     declaratory judgment and an injunction establishing the 
     Tribe's ownership an control of the submerged lands and bed 
     of Lake Coeur d'Alene is barred by the Eleventh Amendment.
       Kansas v. Hendricks 65 USLW 4564 (1997)
       Opinion: Thomas, Rehnquist, O'Connor, Scalia, Kennedy.
       Dissent: Breyer, Stevens, Souter, Ginsburg.
       Holding: Kansas's Sexually Violent Predator Act, which 
     provides for civil commitment of persons who have been 
     convicted or charged with a sexually violent offense, an who, 
     due to a ``mental abnormality'' or ``personality disorder'' 
     are likely to engage in ``predatory acts of sexual 
     violence,'' does not offend the substantive requirements of 
     the Due Process Clause.
       Lambrix v. Singletary 117 S.Ct. 1517 (1997).
       Opinion: Scalia, Rehnquist, Kennedy, Souter, Thomas.
       Dissent: Stevens, Ginsburg, Breyer, O'Connor.
       Holding: A state prisoner whose conviction became final 
     before the Court's decision in Espinosa v. Florida (1992) is 
     foreclosed from relying on that decision in a federal habeas 
     corpus proceeding because Espinosa announced a ``new rule'' 
     within the meaning of Teague v. Lane (1989).
       Lawyer v. Department of Justice 65 USLW 4629 (1997).
       Opinion: Souter, Rehnquist, Stevens, Ginsburg, Breyer.
       Dissent: Scalia, O'Connor, Kennedy, Thomas.
       Holding: A federal district court did not err in approving 
     a settlement agreement imposing new districts for election of 
     members of the Florida Senate and House without first holding 
     unconstitutional the existing plan.
       Lindh v. Murphy 65 USLW 4557 (1997).
       Opinion: Souter, Stevens, O'Connor, Ginsburg, Breyer.
       Dissent: Rehnquist, Scalia, Kennedy, Thomas.
       Holding: Amendments made by the Antiterrorism and Effective 
     Death Penalty Act to the general habeas corpus provisions of 
     chapter 153 of Title 28 do not apply to cases that were 
     pending on the date of enactment.
       McMillan v. Monroe County 117 S.Ct. 1734 (1997).
       Opinion: Rehnquist, O'Connor, Scalia, Kennedy, Thomas.
       Dissent: Ginsburg, Stevens, Souter, Breyer.
       Holding: Sheriffs in Alabama, when exercising policy making 
     authority in a law enforcement capacity, represent the State 
     and not the county.
       O'Dell v. Netherland 65 USLW 4506 (1997).
       Opinion: Thomas, Rehnquist, O'Connor, Scalia, Kennedy.
       Dissent: Stevens, Souter, Ginsburg, Breyer.
       Holding: The rule set forth in Simmons v. South Carolina 
     (1994)--that a capital defendant must be permitted to inform 
     his sentencing jury that he is ineligible for parole if the 
     prosecution argues that the defendant should receive the 
     death penalty rather than life imprisonment because of his 
     alleged future dangerousness to society--was a ``new rule'' 
     that cannot be used to disturb a death sentence that had 
     become final before Simmons was decided.
       Old Chief v. United States 117 S. Ct. 644 (1997).
       Opinion: Souter, Stevens, Kennedy, Ginsburg, Breyer.
       Dissent: O'Connor, Rehnquist, Scalia, Thomas.
       Holding: The district court abused its discretion under 
     Rule 403, Federal Rules of Evidence, in ruling that the 
     United States Attorney, in a prosecution for possession of a 
     firearm by someone with a prior felony conviction, need not 
     agree to the defendant's stipulation that he had a prior 
     felony conviction.
       Printz. v. United States 65 USLW 4731 (1997).
       Opinion: Scalia, Rehnquist, O'Connor, Kennedy, Thomas.
       Dissent: Souter, Ginsburg, Breyer, Stevens.
       Holding: Interim provisions of the Brady Handgun Violence 
     Prevention Act that require state and local law enforcement 
     officers to conduct background checks on prospective handgun 
     purchasers and to perform certain related tasks are 
     unconstitutional.
       Richardson v. McKnight 65 USLW 4579 (1997).
       Opinion: Breyer, Stevens, O'Connor, Souter, Ginsburg.
       Dissent: Scalia, Rehnquist, Kennedy, Thomas.
       Holding: Employees of private prison management companies 
     are not entitled to the qualified immunity that is extended 
     to publicly employed state prison guards in suits brought 
     under 42 U.S.C. Sec. 1983.
       Turner Broadcasting System v. FCC 117 S. Ct. 1174 (1997).
       Opinion: Kennedy, Rehnquist, Stevens, Souter.
       Dissent: O'Connor, Scalia, Thomas Ginsburg.
       Holding: Sections 4 and 5 of the Cable Television Consumer 
     Protection and Competition Act of 1992, which require cable 
     systems to carry local broadcast television stations, are 
     consistent with the First Amendment.


                           october 1995 term

       Bennis v. Michigan 116 S. Ct. 994 (1996).
       Opinion: Rehnquist, O'Connor, Scalia, Thomas, Ginsburg.
       Dissent: Stevens, Souter, Breyer, Kennedy.
       Holding: A Michigan court's order of forfeiture of an 
     automobile, jointly owned by a husband and wife, conforms to 
     due process requirement's even with no offset for the wife's 
     half interest in the car.
       BMW of North America v. Gore 116 S. Ct. 1589 (1996)
       Opinion: Stevens, O'Connor, Kennedy, Souter, Breyer.
       Dissent: Scalia, Thomas, Ginsburg, Rehnquist.
       Holding: Award of $2 million in punitive damages of $4,000 
     was so ``grossly excessive'' that it violated the Due Process 
     Clause of the Fourteenth Amendment.
       Bush v. Vera 116 S. Ct. 1941 (1996)
       Opinion: O'Connor, Rehnquist, Kennedy, Thomas, Scalia.
       Dissent: Stevens, Ginsburg, Breyer, Souter.
       Holding: Three congressional districts created by Texas law 
     constitute racial gerrymanders that are unconstitutional 
     under the Equal Protection Clause.
       Gasperini v. Center for Humanities, Inc. 116 S. Ct. 2211 
     (1977)
       Opinion: Ginsburg, O'Connor, Kennedy, Souter, Breyer.
       Dissent: Stevens, Scalia, Rehnquist, Thomas.
       Holding: A New York law authorizing appellate courts to 
     review the size of civil jury verdicts and to order new 
     trials when the jury's verdict ``deviates materially from 
     what would be reasonable compensation'' can be given effect 
     by federal district courts reviewing jury awards in cases 
     based on diversity of citizenship without violating the 
     Seventh Amendment.
       Gray v. Netherland 116 S. Ct. 2074 (1996)
       Opinion: Rehnquist, O'Connor, Scalia, Kennedy, Thomas.
       Dissent: Stevens, Ginsburg, Souter, Breyer.
       Holding: A habeas corpus petitioner's claim that he was 
     denied due process of law because he was not given adequate 
     notice of some of the evidence that the state would use 
     against him in the penalty phase of his trial would, if 
     sustained, necessitate creation of a ``new rule,'' and 
     therefore does not provide a basis upon which he may receive 
     federal habeas relief.
       Holly Farms Corp. v. NLRB 116 S. Ct. 1396 (1996)
       Opinion: Ginsburg, Stevens, Kennedy, Souter, Breyer.
       Dissent: O'Connor, Rehnquist, Scalia, Thomas.
       Holding: The decision of the NLRB that workers described as 
     ``live-haul'' crews--teams of chicken catchers, forklift 
     operators, and truck drivers--are covered ``employees'' 
     within the meaning of the National Labor Relations Act, 
     and not exempt ``agricultural laborers,'' is a reasonable 
     interpretation entitled to deference.
       Leavitt v. Jane L. 116 S.Ct. 2068 (1996).
       Opinion: Per curiam.
       Dissent: Stevens, Souter, Ginsburg, Breyer.
       Holding: U.S. Court of Appeals for the Tenth Circuit erred 
     in invalidating a provision of Utah's abortion law, 
     regulating abortions after 20 weeks gestational age, on the 
     grounds that it was not severable from another portion of the 
     law, regulating earlier abortions, that had been ruled 
     unconstitutional.
       Montana v. Egelhoff 116 S.Ct. 2013 (1996).
       Opinion: Scalia, Rehnquist, Kennedy, Thomas, Ginsburg.
       Dissent: O'Connor, Stevens, Souter, Breyer, Stevens.
       Holding: Montana's law providing that voluntary 
     intoxication may not be taken into account in determining the 
     existence of a mental state that is an element of a criminal 
     offense does not violate the Due Process Clause.
       Morse v. Republican Party of Virginia 116 S.Ct. 1186 
     (1996).
       Opinion: Stevens, Ginsburg, Breyer, O'Connor, Souter.
       Dissent: Scalia, Thomas, Kennedy, Rehnquist.
       Holding: Section 5 of the Voting Rights Act, which 
     prohibits covered jurisdictions from enforcing new voting 
     qualification or procedure without first obtaining court 
     approval or preclearance by the Attorney General, applies to 
     selection of delegates to a political party's state 
     nominating convention.
       Seminole Tribe of Florida v. Florida 116 S.Ct. 1114 (1996).
       Opinion: Rehnquist, O'Connor, Scalia, Kennedy, Thomas.

[[Page S12027]]

       Dissent: Stevens, Souter, Ginsburg, Breyer.
       Holding: A provision of the Indian Gaming Regulatory Act 
     authorizing an Indian tribe to sue a state in federal court 
     to compel performance of a duty to negotiate in good faith 
     toward the formation of a compact violates the Eleventh 
     Amendment.
       Shaw v. Hunt 116 S.Ct. 1894 (1996).
       Opinion: Rehnquist, O'Connor, Scalia, Kennedy, Thomas.
       Dissent: Stevens, Ginsburg, Breyer, Souter.
       Holding: North Carolina's congressional districting law, 
     containing the racially gerrymandered 12th Congressional 
     District as well as another majority-black district, violates 
     the Equal Protection Clause because, under strict scrutiny 
     applicable to racial classifications, creation of the 
     district was not narrowly tailored to serve a compelling 
     state interest.


                           october 1994 term

       Adarand Constructors, Inc. v. Pena 115 S.Ct. 2097 (1995).
       Opinion: O'Connor, Rehnquist, Kennedy, Thomas, Scalia.
       Dissent: Stevens, Ginsburg, Souter, Breyer.
       Holding: Racial classifications imposed by federal law must 
     be analyzed by a reviewing court under strict scrutiny.
       Florida Bar v. Went For It, Inc. 63 USL W 4644 (1995).
       Opinion: O'Connor, Rehnquist, Scalia, Thomas, Breyer.
       Dissent: Kennedy, Stevens, Souter, Ginsburg.
       Holding: Florida bar rules prohibiting attorneys from 
     sending targeted direct-mail solicitations to victims and 
     their relatives for 30 days following an accident or disaster 
     do not violate the First Amendment.
       Gustafson v. Alloyd Co. 115 S.Ct. 1061 (1995).
       Opinion: Kennedy, Rehnquist, Stevens, O'Connor, Souter.
       Dissent: Thomas, Scalia, Ginsburg, Breyer.
       Holding: The right of rescission conferred by section 12(2) 
     of the Securities Act of 1933 against sellers who make 
     material misstatements ``by means of a prospectus'' applies 
     only to a public offering, and does not apply to a private, 
     secondary sale.
       Gutierrez de Martinez v. Lamagno 115 S.Ct. 2227 (1995).
       Opinion: Gingsburg, Stevens, O'Connor, Kennedy, Breyer.
       Dissent: Souter, Rehnquist, Scalia, Thomas
       Holding: The Attorney General's certification under the 
     Westfall Act, 28 U.S.C. Sec. 2679(d)(1), that a federal 
     employe who was sued for a wrongful or negligent act had been 
     acting within the scope of his employment at the time of the 
     contested action is subject to judicial review.
       Hess v. Port Authority Trans-Hudson Corp. 115 S.Ct. 394 
     (1995).
       Opinion: Ginsburg, Stevens, Kennedy, Souter, Breyer
       Dissent: O'Connor, Rehnquist, Scalia, Thomas
       Holding: The Port Authority Trans-Hudson Corp., a wholly 
     owned subsidiary of the Port Authority of New York and New 
     Jersey that operates a commuter railroad, is not entitled to 
     Eleventh Amendment immunity from suit in federal court.
       Kyles v. Whitley 115 S.Ct. 1555 (1995).
       Opinion: Souter, Stevens, O'Connor, Ginsburg, Breyer.
       Dissent: Scalia, Rehnquist, Kennedy, Thomas
       Holding: The petitioner in this federal habeas corpus 
     action is entitled to a new trial in state court because the 
     net effect of the evidence withheld by the State during his 
     murder trial raised a reasonable probability that its 
     disclosure would have produced a different result.
       Miller v. Johnson 63 USLW 4726 (1995). Opinion: Kennedy, 
     Rehnquist, O'Connor, Scalia, Thomas. Dissent: Stevens, 
     Ginsburg, Breyer, Souter. Holding: Georgia's congressional 
     districting plan violates the Equal Protection Clause.
       Missouri v. Jenkins 115 S.Ct. 2038 (1995). Opinion: 
     Rehnquist, O'Connor, Scalia, Kennedy, Thomas. Dissent: 
     Souter, Stevens, Ginsburg, Breyer. Holding: The district 
     court exceeded its authority in ordering remedies in the 
     longstanding litigation over desegregation of the Kansas 
     City, Missouri public schools.
       Oklahoma Tax Comm'n v. Chickasaw Nation 115 S.Ct. 2214 
     (1995). Opinion: Ginsburg, Rehnquist, Scalia, Kennedy, 
     Thomas. Dissent: Breyer, Stevens, O'Connor, Souter. Holding: 
     Oklahoma may not impose its motor fuels excise tax upon fuel 
     sold by Chickasaw Nation retail stores on tribal trust land, 
     but the State may impose its income tax on members of the 
     Chickasaw Nation who are employed by the Tribe but who reside 
     in the State outside Indian country.
       Rosenberger v. University of Virginia 63 USLW 4702 (1995). 
     Opinion: Kennedy, Rehnquist, O'Connor, Scalia, Thomas. 
     Dissent: Souter, Stevens, Ginsburg, Breyer. Holding: The 
     University, which subsidizes the printing costs of 
     publications by student groups that meet requirements for 
     student participation and open membership, violated the free 
     speech clause of the First Amendment by withholding payments 
     for printing of a student magazine because the magazine 
     ``primarily promotes or manifests a particular belie[f] in or 
     about a deity or an ultimate reality.''
       Sandin v. Connor 63 USLW 4601 (1995). Opinion: Rehnquist, 
     O'Connor, Scalia, Kennedy, Thomas. Dissent: Ginsburg, 
     Stevens, Breyer, Souter. Holding: In some circumstances, 
     state prisoners have liberty interests that are protected by 
     the Due Process Clause, but these interests are generally 
     limited to freedom from restraint which imposes ``atypical 
     and significant hardship on the inmate in relation to the 
     ordinary incidents of prison life.''
       Schlup v. Delo 63 USLW 4089 (1995). Opinion: Stevens, 
     O'Connor, Souter, Ginsburg, Breyer. Dissent: Rehnquist, 
     Kennedy, Thomas, Scalia. Holding: A habeas corpus petitioner 
     under sentence of death who submits a second or ``abusive'' 
     federal claim alleging both constitutional error at his trial 
     and newly discovered evidence of innocence must satisfy the 
     standard announced in Murray v. Carrier (1986), that it is 
     ``more likely than not that no reasonable juror would have 
     convicted him'' in light of the new evidence.
       Shalala v. Guernsey Memorial Hospital 115 S.Ct. 1232 
     (1995). Opinion: Kennedy, Rehnquist, Stevens, Ginsburg, 
     Breyer. Dissent: O'Connor, Scalia, Souter, Thomas. Holding: 
     In making Medicare provider reimbursement determinations, the 
     Secretary of HHS is not required to follow generally accepted 
     accounting principles.
       Tome v. United States 115 S.Ct. 696 (1995). Opinion: 
     Kennedy, Stevens, Scalia, Souter, Ginsburg. Dissent: Breyer, 
     Rehnquist, O'Connor, Thomas. Holding: Federal Rule of 
     Evidence 801(d)(1)(B), which declares that a prior out-of-
     court statement by a witness ``is not hearsay'' if it is 
     consistent with the witness' testimony and is used to rebut a 
     charge of ``recent fabrication or improper influence or 
     motive,'' permits the introduction of such out-of-court 
     statements only if such statements were made before the 
     alleged fabrication or improper influence or motive 
     originated.
       U.S. Term Limits Inc. v. Thornton 115 S.Ct. 1842 (1995). 
     Opinion: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissent: 
     Thomas, Rehnquist, O'Connor, Scalia. Holding: An Amendment to 
     the Arkansas Constitution denying ballot access to 
     congressional candidates who have already served three terms 
     in the House of Representatives or two terms in the Senate is 
     invalid as conflicting with the qualifications for office set 
     forth in Article I of the U.S. Constitution (specifying age, 
     duration, of U.S. citizenship, and state inhabitancy 
     requirements.)
       United States v. Lopez 115 S.Ct. 1624 (1995). Opinion: 
     Rehnquist, O'Connor, Scalia, Kennedy, Thomas. Dissent: 
     Stevens, Souter, Breyer, Ginsburg. Holding: The Gun Free 
     School Zones Act of 1990, which makes it a criminal offense 
     to knowingly possess a firearm within a school zone, exceeds 
     congressional power under the Commerce Clause.

  Mr. SPECTER. I noticed the arrival of our very distinguished 
colleague, Senator Robert Byrd, and I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank my very distinguished colelague, the 
senior Senator from Pennsylvania, Mr. Specter, for yielding to me and 
for allowing me to be a cosponsor of the legislation which he has just 
been discussing before the Senate. I am proud to be one of his 
colleagues. I have great admiration for Senator Specter and admiration 
for his knowledge of the law. He has had long and varied experiences. I 
admire him for that experience.
  Senator Specter is a good lawyer. If I wanted a lawyer to plead my 
case to the Supreme Court, I think I would like Arlen Specter. If I 
were President of the United States--of course, I guess that will never 
become a reality--I would consider him for Attorney General, even 
though he is on the other side of the aisle. He calls the shots like 
they are.
  I am pleased to join with my distinguished colleague in introducing 
the legislation. Our proposal is aimed at helping the Senate to fulfill 
its constitutional duty by directing the Judiciary Committee to 
establish a pool of the best and the brightest Supreme Court candidates 
for the President's consideration whenever there is a vacancy on the 
Court--the best and the brightest.
  I personally do not promote the idea that we must make diversity a 
criterion. I have no problem with diversity, as long as the chosen ones 
are chosen because of their merit--their merit. That is what we seek to 
do here. We want the best and the brightest--not because they are 
Republicans, or not because they are Democrats, necessarily, but 
because they are the best and the brightest.
  As anyone who has ever read the Constitution knows, one of the most 
important differences between the Senate and the House of 
Representatives is the Senate's constitutional duty to advise and 
consent on Presidential nominations. Specifically, that power which is 
contained in article II, section 2, stipulates that the President, ``by 
and with the Advice and Consent of the Senate, shall appoint 
Ambassadors, other public Ministers and Consuls, Judges of

[[Page S12028]]

the supreme Court, and all other Officers of the United States, whose 
Appointments are not herein otherwise provided for, and which shall be 
established by Law.''
  While it may be true that the Senate has traditionally given a 
President great leeway in choosing his executive branch subordinates, 
especially those in Cabinet and sub-Cabinet positions, such deference 
on the part of the Senate has generally not applied to judicial 
nominations, particularly Supreme Court nominations. On the contrary, 
the Senate has historically exercised great caution to ensure that it 
carries out its responsibility, a responsibility that is a fundamental 
element of the separation of powers established in the Constitution.
  While we have been very diligent in granting our consent, I believe, 
as does Senator Specter, that the Senate has been less than energized 
with respect to the offering of its advice. The Constitution refers to 
the ``Advice and Consent.''
  It doesn't just refer to the word ``consent,'' nor does it put the 
word ``consent'' in front of the word ``advise.'' It uses the phrase 
``advise and consent of the Senate.'' Too often, as the American people 
are acutely aware, nominations to the High Court have become embroiled 
in special interest battles. All too often, the qualifications of a 
nominee have been aside as outside forces--interest groups and so on--
have sought to use a nomination as a means of furthering their 
particular ideological agenda. That is not what the Supreme Court is 
for. Too often, the eventual loser in the process is not just the 
individual who has been nominated, but also the Court and its 
integrity, and also, more than that even, the people of the United 
States--the whole people, not just some particular interest group, but 
all of the people.
  Mr. President, in an era when the nine life-tenured Justices who sit 
on our highest Court routinely decide questions that go to the very 
heart of life, liberty, and the pursuit of happiness, we cannot afford 
to have anything less than the most highly qualified individuals 
serving on that Court.
  While I do not mean to disparage any of the current Justices, the 
fact remains that, more and more, nominees are being selected for 
reasons that go beyond their qualifications, that go beyond their 
abilities, that go beyond their dedication, their reverence for and 
dedication to the Constitution. Accordingly, Senator Specter has come 
to the conclusion--and he has allowed me to join him--that the best way 
to resolve this problem and the best way for the Senate to undertake 
its advice responsibility is to direct the Judiciary Committee, after 
consultation with the finest legal minds in our country, to establish a 
panel of potential nominees that would be made available to the 
President--this President, or any other President. In so doing, it is 
our hope that we can begin to depoliticize the nomination process and, 
in turn, help restore to the High Court the esteem, much of which has 
been lost over the past few years.
  In closing, I again want to thank Senator Specter for his 
thoughtfulness, for his vision, as we have worked on the resolution. I 
know that he shares my concern that the Senate has not only this 
responsibility, but it has a duty, a constitutional duty, to ensure 
that the highest Court in the land is comprised of the best and the 
brightest talent that our Nation has to offer. I hope that others will 
join us in this effort.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I thank my colleague, Senator Byrd, for 
those comments about the substance of the resolution. When Senator Byrd 
joins on an issue of constitutional import, there is great weight. I 
thank him on a personal level for his very kind comments about me. When 
he started to talk about an appointment of Arlen Specter if Senator 
Byrd were President, I was about to start a rumor on ``Byrd for 
President.'' I still might. If it was the Attorney General job, I am 
not so sure, but if it had been the Supreme Court he was talking about, 
I might have had a little more motivation on that.
  In the case of Raines versus Byrd, where Senator Byrd challenged the 
line-item veto, in which a curious decision of the Supreme Court said 
that Senator Byrd, Senator Hatfield, Senator Moynihan, and Senator 
Levin didn't have standing, that goes to show you we need more advice 
from the Senate in anticipation. When Senator Byrd said he might have 
asked me to argue the case, I have argued three cases in the Supreme 
Court--most recently, in March of 1994, on the Base Closing Commission. 
It was the fastest 30 minutes of my life, to appear before the Supreme 
Court, and 7 of those sitting nine Justices had appeared before the 
Senate Judiciary Committee. I noted a certain tenor of questions from 
the Court, similar to the ones, I had asked when they appeared as 
nominees for the Supreme Court. Although, I was not successful in that 
case, the Court being reluctant to upset 300 base closings, the Harvard 
Law Review published a detailed critique of the case and found that my 
position was right on the separation of powers. That was just a word or 
two on a parenthetical expression.
   Mr. President, I am going to revise my approach a little bit and at 
this time formally offer this resolution on behalf of Senator Byrd and 
myself on the advise and consent function. I realize that it cannot be 
acted on in this session, but it will be a guidepost for revision after 
consultation with our colleagues.
  I again thank my colleague, Senator Byrd, and I yield the floor.

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