[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4123-S4124]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CONSTITUTIONAL RESPONSIBILITIES OWED TO THE JUDICIAL BRANCH

  Mr. WARNER. Mr. President, Article II, Section 2 of the Constitution 
provides that the President ``shall nominate, and by and with the 
Advice and Consent of the Senate, shall appoint . . . Judges of the 
supreme Court, and all other Officers of the United States . . . .''
  The debate before us today involves this clause of the Constitution, 
and this debate is a very important one. We should put aside 
partisanship and examine the very roots of our Republic to determine 
the respective responsibilities of the three branches of our 
government.
  The magnificence of the ``Great Experiment,'' a term used by the 
skeptics of the work of our founding fathers, is what has enabled our 
Republic to stand today, after over 200 years, as the longest surviving 
democratic form of government still in existence.
  But, the survival of that ``Great Experiment'' is dependent upon the 
continuous fulfillment of the balanced, individual responsibilities of 
the three branches of our government.
  Let's reflect on the historical roots of the ``advice and consent'' 
clause.
  During the Constitutional Convention, the Framers labored extensively 
over this clause, deferring a final decision on how to select federal 
judges for several months.
  Some of the Framers argued that the President should have total 
authority to choose the members of the Judiciary. Others thought that 
both the House of Representatives and the Senate should be involved in 
providing ``advice and consent.''
  Ultimately, a compromise plan, put forth by James Madison, won the 
day--where the President would nominate judges and only the Senate 
would render ``advice and consent.''
  Such a process is entirely consistent with the system of checks and 
balances that the Framers carefully placed throughout the Constitution. 
Presidents select those who should serve on the Judiciary, thereby 
providing a philosophical composition in the judicial branch. However, 
the Senate has a ``check'' on the President because it is the final 
arbiter with respect to a nominee.
  Throughout the debates of the Constitutional Convention, there 
appears to have been little debate on what factors the Senate should 
actually use when evaluating presidential nominees. It is likely that 
this silence was intentional.
  The first test case arose with our First President! Soon after the 
Constitution was ratified it became clear that the Senate did not take 
its ``advice and consent'' role as one of simply rubber-stamping 
judicial nominees. This became evident when the Senate rejected a 
nomination put forward by our first President and a founding father, 
President George Washington.
  President Washington nominated John Rutledge to serve on the U.S. 
Supreme Court. And, even though Mr. Rutledge had previously served as a 
delegate to the Constitutional Convention, the Senate rejected his 
nomination. It is interesting to note that many of those Senators who 
voted against the Rutledge nomination were also delegates to the 
Constitutional Convention.
  From the earliest days of our Republic, the nomination process has 
worked. We must now reconcile and make sure it continues to work.
  Based on history, it is clear to me that the Senate's role in the 
confirmation process is more than just a mere rubber-stamp of a 
President's nomination; but it is the Senate's Constitutional 
responsibility to render ``advice and consent'' after a fair process of 
evaluating a President's nominee.
  This process illustrates well how our three branches of government 
are interconnected yet independent.
  Thomas Jefferson remarked on the independence of our three branches 
of government by stating, ``The leading principle of our Constitution 
is the independence of the Legislature, Executive, and Judiciary of 
Each other.''
  But, I would add that each branch of government must perform its 
respective responsibilities in a fair and timely manner to ensure that 
the three branches remain independent.
  In my view, we must ask ourselves, is the current Senate posture of 
the nomination and ``advice and consent'' process during the early days 
of the Bush

[[Page S4124]]

Administration consistent with our country's experience over the last 
200 plus years since our Constitution was ratified? That is for each 
Senator to decide.
  Currently, more than 10 percent of Federal judgeships are vacant. 
And, for the 12 Circuit Court of Appeals, nearly 20 percent of the 
seats are vacant. Is our federal Judiciary able to fulfill its 
obligations? That is for each Senator to decide.
  In day to day court workloads, judicial vacancies result in each of 
the active and senior status judges having a greater caseload. This, in 
turn, often results in a longer time period for cases to be decided.
  The ultimate effect is that Americans who have turned to the court 
system seeking justice in both civil and criminal matters are left 
waiting for a resolution of their case. And, all too often, justice 
delayed is justice denied.
  Our current Chief Justice of the Supreme Court, Judge William 
Rehnquist, has expressed his views on this subject several times during 
both the Clinton and Bush Administrations. Judge Rehnquist recently 
reiterated remarks he made first in 1997 when he stated, ``the 
President should nominate candidates with reasonable promptness, and 
the Senate should act within a reasonable time to confirm or reject 
them. Some current nominees have been waiting a considerable time for a 
Senate Judiciary Committee vote or a final floor vote.''
  I am in complete agreement with the Chief Judge. We must act in a 
timely fashion to fill judicial vacancies.
  Mr. DASCHLE. Mr. President, our friends on the other side of the 
aisle are right about one thing: it is important to fill vacancies on 
the Federal bench in a timely manner.
  In his remarks last week, President Bush cited Chief Justice 
Rehnquist's report about the alarming number of vacancies in the 
federal courts.
  He's right. Let me read some of Chief Justice Rehnquist's report: 
``vacancies cannot remain at such high levels indefinitely without 
eroding the quality of justice.''
  Except that's from the report he wrote in 1997.
  Democrats, independent-minded observers, and the Chief Justice of the 
United States Supreme Court have all raised concerns about the judicial 
vacancy crisis for years.
  But our Republican colleagues never seemed to hear those concerns 
when they ran the Senate. The fact that they now recognize the 
seriousness of the situation is--I suppose--progress.
  It appears, however, that there are some facts on which they are 
still unclear. I'd like to take a few minutes to set the record 
straight:
  First, the judicial crisis developed when Republicans ran the Senate.
  Under Republicans, total court vacancies rose by 75 percent--from 63 
at the beginning of 1995 to 110 by the time Democrats took control of 
the Senate.
  Circuit court vacancies more than doubled--from 16 to 33.
  As the vacancy rate was skyrocketing, more than half--56 percent--of 
President Clinton's circuit nominees in 1999 and 2000 never received a 
hearing or a vote.
  Second, Democrats have reduced the number of vacancies.
  The judicial nominations process has significantly improved under 
Democratic leadership.
  As of this afternoon, in only 10 months, the Democratically 
controlled Senate has confirmed 56 nominees--more judicial nominees 
than the Republican-controlled Senate confirmed for President Reagan in 
his first 12 months in office.
  Our 10-month number is also greater than the number of judicial 
nominations confirmed in four of the 6 years Republicans controlled the 
Senate during the Clinton administration.
  It also exceeds the average number of judicial nominees the 
Republicans confirmed during the time they controlled the Senate--when, 
from 1995-2001, confirmations averaged only 38 per year.
  But Democrats aren't just improving the numbers, we're improving the 
nomination process. Under Senator Leahy's stewardship, the process is 
now faster, fairer--and more productive.
  Senator Leahy has restored a steady pace to the judicial nominations 
process by holding regular hearings and giving nominees a vote in 
committee. Despite the chaos of September 11 and the disruption caused 
by anthrax, the Judiciary Committee has held 15 hearings involving 48 
judicial nominations in the past 10 months, and is planning an 
additional hearing this week to consider another 7 nominations.
  In addition to increasing the total number of hearings, Senator Leahy 
is reducing the amount of time it takes to confirm a nomination. The 
Judiciary Committee has been able to confirm nominations, on average, 
within 86 days after a nominee was eligible for a hearing. This is more 
than twice as fast as the confirmation process under the most recent 
Republican-controlled Senate.
  Senator Leahy has also made the process more fair.
  Unlike our Republican colleagues, who would sit on nominations for 
years--many never receiving a hearing, Senator Leahy has ensured that 
President Bush's judicial nominees are treated evenhandedly. Senator 
Leahy has also eliminated the practice of secret holds within the 
judiciary, that were often used to delay and defeat nominees for 
political reasons.
  Third, the confirmation of judges is part of a constitutional 
obligation we take very seriously.
  Democrats have been clear: We will make the process move more fairly, 
and more quickly--but we will not abdicate our constitutional 
responsibility to advise and consent.
  I believe the President has a right to appoint to his cabinet and 
administration men and women with whom he is personally and 
ideologically comfortable.
  But Federal judges and Supreme Court justices do not serve at the 
pleasure of the President. Their term does not end when the President 
leaves office. These are lifetime positions. Their decisions will have 
profound consequences for years, possible decades, to come. For that 
reason, they deserve special scrutiny. The Constitution requires the 
Senate to evaluate the President's judicial nominees, nominees, offer 
advice, and grant--or withhold--its consent.
  Fourth, I'm concerned that the real issue isn't numbers, but using 
Judiciary to achieve a political agenda.
  Appointing judges that are out of the mainstream is a way that the 
right-wing can achieve through the judiciary what they can't get 
through Congress, the President, or any other office represented by 
those who reflect the will of the people, and need to stand for 
election before them.
  Most Americans simply don't want to see a judiciary that will turn 
back the clock on decades of progress for civil rights, women's rights, 
workers rights, and the environment. Most of us don't either.
  Senator Lott and Senator Nickles both hinted after Judge Pickering's 
nomination was defeated in committee that they would find ways to 
retaliate. The irony is: By shutting down the Senate today, they are 
preventing the Senate from doing the very thing they claim to want.
  Right now, their tactics are preventing the Judiciary Committee from 
holding hearings on 4 of the President's nominees. And last August they 
wouldn't give us consent to carry pending nominees over the recess--
further slowing the process. Amazingly, their judges are falling victim 
to their own tactics.
  There are 77 days left in this Congress--only 46 days if you don't 
include Mondays and Fridays.
  Shutting down the Senate at a time when there are so many major 
questions facing our nation, and so few working days left in this 
Congress--is not the way to achieve their stated goal of confirming 
judges.
  When all the facts are thoroughly examined and honest comparisons are 
made, it is clear that the judicial nominations process has 
significantly improved under Senator Leahy's stewardship, and 
Democratic leadership.
  There are real differences between our parties on many issues.
  We have shown time and time again, on issue after issue, that we can 
work through those differences for the good of the nation.
  Today, I ask our Republican friends to join with us in helping--and 
not obstructing--the Senate as we work to meet the needs of the 
American people, and perform our constitutional obligation regarding 
federal judges.




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