[Congressional Record Volume 149, Number 67 (Wednesday, May 7, 2003)]
[Senate]
[Pages S5803-S5805]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE LOOMING SUPREME COURT BATTLE

  Mr. HATCH. Mr. President, I want to take a few moments this morning 
to share with my colleagues an article that recently appeared in the 
Washington Times about what may happen if there is a Supreme Court 
vacancy this year. I hope this article is wrong because it will be a 
sad day for America if its predictions come true. But I am going to 
talk about this article because I think its predictions might come true 
in this bitter, partisan Senate that exists today.
  This article, written by James L. Swanson of the Cato Institute, is 
entitled, Forthcoming Clash for the Court. Let me take a moment to 
share with my colleagues the dire forecast this article sets forth. It 
begins:

       At the Supreme Court of the United States, October Term 
     2002 is drawing to a close. The justices hear their last oral 
     arguments on April 30, and in late June they will take to the 
     bench for the last time to announce their final opinions of 
     the term. Court watchers await decisions in several important 
     cases, including free-speech and affirmative-action issues, 
     which may not come down until the last day of the term. But 
     that is not the only reason why court watchers have circled 
     the last week in June on the calendar. That is when 
     oddsmakers are betting on the retirement of at least one 
     member of the court.
       For months, pundits have speculated that Chief Justice 
     William H. Rehnquist, Justice Sandra Day O'Connor or Justice 
     John Paul Stevens will step down this year. Why?
       Because justices traditionally retire under the political 
     party that appointed them, and this is the last chance for 
     these three Republican appointees to retire during President 
     Bush's first term with the assurance that he can fill a 
     vacancy before the 2004 election.
       Because, in the case of the chief justice, he has, in three 
     decades of service, gone from lone dissenter to leader of the 
     court's return to the first principles of limited government 
     and federalism, and will go down as one of the most important 
     chief justices in history.

  I agree with that assessment. I agree the author is right on that. 
Chief Justice Rehnquist has been a remarkable chief justice and the 
Court has done some remarkable things under his leadership. But the 
article goes on to say:

       Because, in the case of Justice O'Connor, the press spread 
     rumors that she wanted to retire.
       Because, in the case of Justice Stevens, he is 83 years 
     old.

  Both are excellent people and excellent leaders. Let me go on:

       It is impossible to know whether these or any other members 
     of the Supreme Court are planning to retire this year. Many 
     self-styled experts have embarrassed themselves by attempting 
     to predict a justice's vote in a single case, let alone a 
     retirement from the bench. Nor is this to suggest that any 
     of the nine justices should retire. The performance of the 
     oldest justice (John Paul Stevens), to the youngest 
     (Clarence Thomas), of the longest serving (William H. 
     Rehnquist) to the briefest (Stephen Breyer), reveals that 
     all remain able and engaged. Their written opinions 
     confirm that none has suffered an intellectual decline. 
     One may disagree with their views, but not their 
     competence to serve. If a retirement comes, it will occur 
     because the justice wants to step down, not because he or 
     she has to.
       It might not happen until the end of June. But it could 
     also happen tomorrow. Justices Potter Stewart, Warren E. 
     Burger and Thurgood Marshall waited until the end of their 
     final terms and made June announcements. But Byron White and 
     Harry Blackmun announced their retirements early, on March 3, 
     1993, and April 6, 1994, respectively, to give President 
     Clinton ample time to nominate their successors, Ruth Bader 
     Ginsburg and Stephen Breyer, and to win Senate confirmation 
     by, in both cases, the beginning of August.
       Although it is impossible to know if or when a vacancy will 
     occur, one thing is easy to predict: how Democrats will 
     respond to Mr. Bush's first nomination of a Supreme Court 
     justice. Senate Democrats, in combination with a cabal of 
     special interest groups, intend to politicize the Supreme 
     Court and oppose any Bush nominee, regardless of who the 
     nominee is. History, both recent and reaching back to the 
     Reagan and first Bush presidencies, offers little 
     encouragement that the Senate will conduct itself 
     professionally and responsibly.
       The pattern emerged over time: the Democrats' defeat of 
     Judge Robert H. Bork's nomination to the court in 1987; their 
     near-killing of Judge Clarence Thomas' nomination in 1991; 
     their rage against the Supreme Court for ``handing'' the 
     presidency to the Republicans in the 2000 election; the 
     notorious Washington Post op-ed by Abner Mikva (former 
     Clinton White House counsel and retired U.S. Court of Appeals 
     judge) calling on the Senate to block any Supreme Court 
     nominations by President Bush; their bottling up superbly 
     qualified appellate court nominees for nearly two years on 
     the Democratic-controlled Senate Judiciary Committee; their 
     obsession with Roe vs. Wade and their imposition of 
     ideological litmus tests; their celebration of the American 
     Bar Association seal of approval as the ``gold standard''--
     until the ABA began giving many of Mr. Bush's nominees the 
     highest possible rating; their filibustering of the 
     nomination of Miguel Estrada to the U.S. Court of Appeals in 
     Washington to prevent an up or down vote even after a 
     majority of senators announced that they will vote to confirm 
     him; their threatened filibuster against Texas Supreme Court 
     Justice Priscilla Owen for a seat on the 5th U.S. Circuit 
     Court of Appeals.
       That history, and more, exposes what Democrats will do to 
     fight a Bush Supreme

[[Page S5804]]

     Court nomination. The attack will be waged on two fronts, one 
     substantive, the other procedural.
       The substantive attack will have six parts.
       Retirement day blitzkrieg. If the retiring justice is a 
     Republican, and gives the White House advance, confidential 
     notice of his or her intention to retire, as Chief 
     Justice Warren Burger did in 1986, the president will have 
     an opportunity to announce a retirement and a nomination 
     on the same day. Within one hour of that nomination, a 
     leading Democratic senator, probably Tom Daschle, Edward 
     Kennedy, Patrick Leahy or Charles Schumer, will attack the 
     nominee's character, integrity or competence. (Recall Mr. 
     Kennedy's outburst within 45 minutes of President Reagan's 
     nomination of Judge Bork: ``Robert Bork's America is a 
     land in which women would be forced into back-alley 
     abortions, blacks would sit at segregated lunch counters, 
     rogue policemen could break down citizen's doors in 
     midnight raids, school children could not be taught about 
     evolution, writers and artists could be censured at the 
     whim of government.'') Sundry left wing ``public 
     interest'' (actually, special interest) groups will join 
     the chorus. The purpose of the first day blitzkrieg is to 
     set the president and the nominee reeling on their heels 
     and destroy the momentum of the nomination. The blitzkrieg 
     aims to spin that night's TV coverage and the next 
     morning's newspaper stories.
       The paper blizzard. Within hours of the nomination, 
     senators and special interest groups will inundate the press 
     with letters, reports, memos and even small books that 
     purport to expose the unfitness of the nominee. In many 
     cases, those scripts have already been written. For more than 
     two years, Democrats have been doing ``opposition research,'' 
     as though preparing for a political campaign, to uncover 
     damaging information on the 10 to 15 people rumored to be on 
     the president's short list for the court. The purpose of the 
     paper blizzard is to turn public opinion against the nominee 
     long before the Senate Judiciary Committee even convenes a 
     hearing on the nomination.
       The indictment. The paper blizzard will include some or all 
     of the following accusations: The nominee is not 
     ``sensitive'' to the rights of women, children, black 
     Americans and other racial minorities, the disabled, workers, 
     unions, farmers, native Americans and others. The nominee is 
     ``out of the mainstream'' of the American legal tradition; is 
     too ``right wing''; is even ``radical.'' (Democrats perfected 
     their use of those smear tactics against Judge Bork, stooping 
     so low as to suggest he might not believe in God. Apparently 
     a godless conservative is even more dangerous than a god-
     fearing one.) With much hand-wringing, Democrats will cry 
     crocodile tears, sighing ``if only the president had 
     nominated a moderate conservative, we would be delighted to 
     confirm him or her.''

  We have seen that lately in just regular nominations. You can imagine 
what is going to happen with the Supreme Court nomination.

       If the nominee does not have an extensive body of scholarly 
     writings, Democrats will tar him as a ``stealth'' candidate, 
     who possesses hidden and alarming views. If, on the other 
     hand, the nominee has written extensively, those writings 
     will be denounced as ``out of the mainstream.''

  Remember that phrase. We have seen a lot of it around here in recent 
times on current nominees, who have had unanimous well qualified 
ratings from the gold standard of the Democrats, the American Bar 
Association.
  Mr. Swanson goes on to say:

       If the nominee believes in a color-blind society and equal 
     treatment under the laws, and questions the constitutionality 
     of race-conscious policies called affirmative action by some, 
     then of course the nominee is a ``racist'' who will want to 
     ``turn back the clock'' on civil rights, overturn Brown vs. 
     Board of Education, repeal the 13th, 14th and 15th 
     Amendments, and reintroduce slavery.

  Mr. Swanson is very colorful in some of his remarks, but we have 
actually seen this type of treatment of Republican nominees.
  Mr. Swanson goes on to say:

       Beyond attacking the nominee personally, the paper blizzard 
     will suggest that he or she represents a so-called 
     transformative appointment who will upset the alleged 
     delicate balance of the court. Some Democrats will seek cover 
     by claiming that they have nothing against the nominee, he or 
     she is just the wrong person at the wrong time for the best 
     interests of the court and the country.

  We have actually seen that in the months since January, and on other 
occasions, with the same arguments being used against people with 
unanimous well qualified recommendations from the American Bar 
Association.
  Mr. Swanson goes on to say:

       Rancorous hearings. Mr. Bush's first nominee to the court 
     should not expect a cordial reception from Democrats on the 
     Judiciary Committee. They will attempt to grill the nominee 
     for three to six days. They will ask hundreds of questions. 
     Many hostile witnesses will be called. Special interest 
     groups will haunt the hearing room and loiter in the halls, 
     murmuring against the nominee and handing out attack 
     literature.
       The partisan committee vote. For the Democrats, the 
     hearings are mainly for show and to posture before the 
     cameras for their constituencies and the left-wing special 
     interest groups. They will have already decided their vote 
     before the hearing begins or the nominee speaks one word. Of 
     course that vote is ``no.'' Because Republicans are a 
     majority on the committee, the nomination will be reported to 
     the Senate favorably by a party-line vote.
       The Senate vote. Once the Judiciary Committee reports the 
     nomination to the full Senate, Democrats opposing the 
     nomination will continue to fight it on the floor by 
     insisting on a lengthy debate. Then they will try to persuade 
     their colleagues to vote against the nominee. Ultimately they 
     will lose. The president's nominee will be confirmed because 
     the Republican majority, plus a number of responsible 
     Democrats, will vote to confirm him. If there is a vote, that 
     is.
       Along with their substantive attack on the nominee, 
     Democrats will mount a procedural attack. That plan has two 
     elements.
       Delay the Judiciary Committee hearing. Upon making a 
     nomination, the president will ask Judiciary Committee 
     Chairman Orrin Hatch to schedule hearings by early July, with 
     the goal of having a Senate floor vote by late July or early 
     August. Democrats on the committee will vigorously oppose 
     that goal and attempt to delay the hearing until September. 
     They will bleat that there must be no ``rush to judgment,'' 
     and claim that they require months to ``study'' the nominee. 
     Their ability to stall Judge Bork's hearings until September 
     contributed to the nomination's defeat. Democrats and the 
     special interest groups had all summer to mobilize their 
     onslaught against Judge Bork. The White House failed to 
     anticipate the viciousness of the assault and was taken off 
     guard. Because the Republicans now control the committee, the 
     Democrats will find it harder to stall the hearings.
       The filibuster trump card. When all else fails to cow the 
     president's nominee into withdrawing, when the Democrats have 
     been unable to stall the Judiciary Committee hearing, when 
     they can't stop the committee from reporting the nomination 
     favorably to the full Senate, after they fail to turn 
     mainstream America against the nominee, when they count heads 
     and discover that a majority of senators, including many 
     Democrats, intend to vote to confirm the president's nominee, 
     look for the leaders of the opposition to play their 
     favorite, anti-democratic, Democratic trump card--the 
     filibuster. Democrats challenged the president on Miguel 
     Estrada, and they believe they have found the president 
     wanting. Although Mr. Bush has called Mr. Estrada one of his 
     most important appellate nominees, the White House has, for 
     the past two years, been unable to confirm him. The 
     Democrats' successful filibuster against Miguel Estrada, the 
     first ever against a nominee to a U.S. Court of Appeals, has 
     emboldened them to challenge Mr. Bush when he makes his first 
     nomination to the High Court. The Democrats have paid no 
     price for their Estrada filibuster. Look for them to test the 
     president again.
       Yes, that is the worst-case scenario, and it may not 
     unfold. In any event, if there is a vacancy on the court, the 
     nominee must be treated civilly, fairly and allowed an up-or-
     down vote by the full Senate, as the Constitution 
     contemplates. The president had better be prepared for a 
     fight. His opponents are certainly ready. If the president 
     prevents the politicization of nominations to the lower 
     Federal courts, and to the U.S. Supreme Court, he will win 
     the most important domestic battle of his first term. If he 
     loses that battle, he may not get a second chance.

  Those are one observer's predictions about the fight that will ensue 
if there is a vacancy on the Supreme Court this year. As I said at the 
outset, I certainly hope that the predictions in this article do not 
come true, because it will be a sad day for the Senate and for the 
country if they do. I have to admit that many of the tactics described 
in this article sound alarmingly familiar--we have seen them practiced 
with great skill on President Bush's Circuit Court of Appeals nominees.
  We have seen most of those types of techniques used in various 
debates. I am hopeful that this type of bitter partisanship will not 
continue. I continue to try to be optimistic about the prospects for a 
Supreme Court vacancy, but it gets harder and harder every day, and 
about fair treatment for whoever is appointed by this President. I have 
to say I have a great deal of concern about how the President's nominee 
or nominees to the Supreme Court will be treated. I hope my colleagues 
will think about the impact of these tactics as described in this 
article and the consequences of such a destructive campaign on both the 
Senate and the Nation.
  Mr. Swanson has done us a favor by putting what have been tactics 
used in the past into an article--yes, an alarmist article, but 
unfortunately every one of those tactics he has described has been 
utilized in the past by friends on the other side.

[[Page S5805]]

  We are right now in the middle of filibusters against two highly 
qualified, exceptional people, and the arguments used against them are 
almost unreal. The only argument I keep hearing about Miguel Estrada is 
he just hasn't answered all the questions. We have had very few circuit 
court nominees who have even come close to answering the number of 
questions that have been asked of Mr. Estrada. We hear arguments 
against Priscilla Owen, about the only thing left that has not been 
totally obliterated by the facts: that she joined in dissent--in a few 
of the better than 800 cases--of a young girl who asked for a judicial 
bypass so her parents would not have to be notified about her upcoming 
abortion.
  Polls indicate that more than 70 percent of the American people 
support parental notification. It has nothing really to do with Roe v. 
Wade. It has to do with whether parents have a right to assist or 
consult with their young daughter who may be going through the most 
momentous medical procedure in her lifetime. But the finder of fact in 
these few cases found that these young women--these young girls--should 
consult with their parents. That is being held against Priscilla Owen 
as though she is against Roe v. Wade, when she clearly and 
unequivocally said she will support the decision in Roe v. Wade as a 
circuit court of appeals judge. You couldn't ask anything more of her, 
but they are asking more.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LUGAR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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