[Congressional Record Volume 151, Number 90 (Thursday, June 30, 2005)]
[Senate]
[Pages S7807-S7809]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  CONSULTATION ON JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, last week a number of Senators urged the 
President, if a vacancy were to arise on the Supreme Court, to consult 
with Senators from both parties. I commend, in particular, Senator 
Kennedy, a former Judiciary Committee chairman for his perspective on 
this and thank him for his diligence in helping make this essential 
point in his statements again this week.
  Forty-four Senators sent the President a joint letter urging 
consultation and a consensus nomination. In addition, I understand that 
Senators Nelson and Salazar have also urged consultation.
  Likewise the 14 Senators in the bipartisan group that averted the 
nuclear option included strong language in their agreement urging 
bipartisan consultation by the President. They wrote:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.

  I agree. Bipartisan consultation is consistent with the traditions of 
the Senate and would return us to practices that have served the 
country well. They are right to urge greater consultation on judicial 
nominations.
  Last week some on the other side of the aisle criticized me for 
offering to help the President should a Supreme Court vacancy arise. At 
the time, I said I stood ready to work with President Bush to help him 
select a nominee to the Supreme Court who can unite Americans. In spite 
of the unfair criticism, I reiterate today my willingness to help. I 
have urged consultation and cooperation for 4 our years and have 
continued to reach out over these last few weeks to the President. I 
hope that if a vacancy does arise the President will finally turn away 
from his past practices, consult with us and work with us.
  I am troubled by the divisive battle lines being drawn by some right-
wing groups that have launched attack ads in recent weeks. They attack 
Democratic Senators generally and individually in advance of a vacancy 
or a nomination. The other side has established a new low by going 
``negative'' in advance and being critical in anticipation of a fight 
that I and others here in the Senate are working to avoid. The partisan 
activists supporting the White House have boasted for weeks about their 
war chest of upwards of $20 million to be used to crush any opposition 
to this White House's selection. They have now chosen to fire a nasty 
preemptive strike in what they intend to make all-out partisan 
political warfare.

  If the White House intends to follow that plan, it will be most 
unfortunate, unwise and counterproductive. I have urged, Democrats have 
urged a better way. Although the landscape ahead is sown with the 
potential for controversy and contention should a vacancy arise on the 
Supreme Court, confrontation is unnecessary. Consensus should be our 
mutual goal.
  I hope the President's objective will not follow the path he has 
taken with so many divisive circuit court nominees and send the Senate 
a Supreme Court nominee so polarizing that confirmation is eked out in 
the narrowest of margins. This would come at a steep and gratuitous 
price that the entire Nation would have to pay in needless division. It 
would serve the country better to choose a qualified consensus 
candidate who can be broadly supported by the public and by the Senate.
  The process will begin with the President. He is the only participant 
in the process who can nominate candidates to fill Supreme Court 
vacancies. If there is a vacancy, the decisions made in the White House 
will determine whether the nominee chosen will unite the Nation or will 
divide the Nation.

[[Page S7808]]

The power to avoid political warfare with regard to the Supreme Court 
is in the hands of the President. Senate Democrats are not spoiling for 
a fight however much partisans on the other side may be. The person who 
will decide whether there will be a divisive or unifying process and 
nomination is the President. If consensus is a goal, bipartisan 
consultation will help achieve it. That is what the American people 
want and what they deserve.
  The Supreme Court should not be a wing of the Republican party, nor 
should it be an arm of the Democrat party. If the rightwing activists 
convince the President to choose a divisive nominee, they will not 
prevail without a difficult Senate battle. And if they do, what will 
they have wrought? The American people will be the losers: The 
legitimacy of the judiciary will have suffered a damaging blow from 
which it may not soon recover. Such a contest would itself confirm that 
the Supreme Court is just another setting for partisan contests and 
partisan outcomes. People will perceive the Federal courts as places in 
which ``the fix is in.''
  I take the President at his word. He made a public commitment at a 
press conference several weeks ago to consult with Democratic as well 
as Republican Senators should a Supreme Court vacancy arise. If there 
were to be a vacancy, I look forward to consulting with the President.
  Our Constitution establishes an independent Federal judiciary to be a 
bulwark of individual liberty against incursions or expansions of power 
by the political branches. That independence is what makes our 
judiciary the model for others around the world. That independence is 
at grave risk when a President seeks to pack the courts with activists 
from either side of the political spectrum. We need fair judges, not 
sure votes for a partisan agenda.
  The American people will cheer if the President chooses someone who 
unifies the Nation. This is not the time and a vacancy on this Supreme 
Court is not the setting in which to accentuate the political and 
ideological division within our country. In our lifetimes, there has 
never been a greater need for a unifying pick for the Supreme Court. At 
a time when too many partisans seem fixated on devising strategies to 
force the Senate to confirm the most extreme candidate with the least 
number of votes possible, Democratic Senators are urging cooperation 
and consultation to bring the country together. There is no more 
important opportunity than this to lead the Nation in a direction of 
cooperation and unity.
  The independence of the Federal judiciary is critical to our American 
concept of justice for all. We all want Justices who exhibit the kind 
of fidelity to the law that we all respect. We want them to have a 
strong commitment to our shared constitutional values of individual 
liberties and equal protection. We expect them to have had a 
demonstrated record of commitment to equal rights. There are many 
conservatives who can meet these criteria and who are not rigid 
ideologues.
  This is a difficult time for our country and we face many challenges. 
The President addressed the Nation about the difficult situation in 
Iraq just this week. We need to confront the truth about the situation 
in Iraq and develop a concrete strategy rather than the swaggering 
rhetoric we hear so much of lately. We need to do more about the rising 
gas prices and health care costs that burden so many Americans. We need 
to improve the economic prospects of Americans. We need to work 
together to defend against real threats, the proliferation of nuclear 
weapons, and disruption of critical food, water, energy and information 
services. It is my hope that we can work together on many issues 
important to the American people, including maintaining a fair and 
independent judiciary. I am confident that a smooth nomination and 
confirmation process can be developed on a bipartisan basis if we work 
together. The American people we represent and serve are entitled to no 
less.
  Justice Thomas remarked this past Tuesday on the ``winds of 
controversy swirling . . . about the imagined resignations'' from the 
Supreme Court. We were all reminded, again, this week of the humanity 
of the Chief Justice of the United States Supreme Court. He concluded 
this year's term with dignity, humour and steadfastness. Despite the 
rampant speculation that continued this week, I know that the Chief 
Justice will retire when he decides that he should, not before. He has 
earned that right after serving on the Supreme Court for more than 30 
years, the last 19 as the Chief Justice. I have great respect and 
affection for him and he is in our prayers.
  Mr. CORNYN. Mr. President, in light of recent comments on the floor 
of this body concerning the possibility of a Supreme Court vacancy, I 
ask unanimous consent that an op-ed that I published in National Review 
Online on Monday, June 27, 2005, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the National Review Online, Jun. 27, 2005]

                             R-E-S-P-E-C-T


  For the law, for the Court, for the Constitution, for the nominee...

                        (By Senator John Cornyn)

       It wouldn't be summertime in Washington if speculation 
     weren't running rampant about the possibility of a retirement 
     announcement from the Supreme Court. But whatever the time 
     frame for a Supreme Court vacancy, the process for selecting 
     the next associate or chief justice should reflect the best 
     of the American judiciary--not the worst of American 
     politics. We deserve a Supreme Court nominee who reveres the 
     law--and a confirmation process that is civil, respectful, 
     and keeps politics out of the judiciary.
       History affords us some important benchmarks for 
     determining whether the Senate has undertaken a confirmation 
     process worthy of the Court and of the American people. There 
     is a right way and a wrong way to debate the merits of a 
     Supreme Court nominee. The Senate's past record, 
     unfortunately, has been mixed.
       Whoever the nominee is, the Senate should focus its 
     attention on judicial qualifications--not personal political 
     beliefs. Whoever the nominee is, the Senate should engage in 
     respectful and honest inquiry, not partisan personal attacks. 
     And whoever the nominee is, the Senate should apply the same 
     fair process that has existed for over two centuries: 
     confirmation or rejection by majority vote.
       Whoever the nominee is, the Senate should focus its 
     attention on judicial qualifications--not personal political 
     beliefs. We should not be surprised if a person of the 
     stature and legal ability to be considered for appointment to 
     the Supreme Court has spent at least some time thinking, and 
     perhaps speaking and writing, about the important and 
     sensitive issues of the day. But a nominee should not be 
     punished simply for exercising his talents. After all, judges 
     swear an oath to obey and to apply the law--not their own 
     personal, political views.
       When President Clinton nominated Ruth Bader Ginsburg to the 
     Court in 1993, senators knew that she was a brilliant jurist 
     with a strong record of service in the law. Senators also 
     knew she served as general counsel of the American Civil 
     Liberties Union--a liberal organization that has championed 
     the abolition of traditional marriage laws and attacked the 
     Pledge of Allegiance. And they knew she had previously 
     written that traditional marriage laws are unconstitutional; 
     that the Constitution guarantees a right to prostitution; 
     that the Boy Scouts, Girl Scouts, Mother's Day, and Father's 
     Day are all discriminatory institutions; that courts should 
     force taxpayers to pay for abortions, against their will; and 
     that the age of consent for sexual activity should be lowered 
     to age 12. The Senate nevertheless confirmed her by a 96-3 
     vote.
       Similarly, Stephen Breyer (nominated in 1994 by President 
     Clinton) and Antonin Scalia (nominated in 1986 by President 
     Reagan) are brilliant jurists with strong records of 
     service. Breyer had previously served as chief counsel to 
     Senator Ted Kennedy on the Senate Judiciary Committee, and 
     his nomination to the Court was opposed by many 
     conservatives because of his alleged hostility to 
     religious liberty and private religious education, while 
     Scalia was known to hold strongly conservative views on a 
     number of topics. The Senate nevertheless confirmed them 
     by votes of 87-9 and 98-0, respectively.
       The confirmation proceedings of Ginsburg, Breyer, and 
     Scalia provide a helpful model for future behavior. Each of 
     those nominees enjoyed exceptional legal credentials. Each 
     possessed strongly held personal political views. And each 
     commanded the support of a broad bipartisan majority of 
     senators.
       Whoever the nominee is, the Senate should engage in 
     respectful and honest inquiry, not partisan personal attacks. 
     Any debate over the next nominee to the Supreme Court must be 
     conducted with respect and honesty. At a minimum, senators 
     can disagree without being disagreeable. At a minimum, 
     senators can debate the issues honestly, and refrain from 
     distorting and misrepresenting records and rulings.
       Unfortunately, respect for nominees has not always been the 
     standard. Lewis Powell was accused of demonstrating 
     ``continued hostility to the law'' and waging a ``continual 
     war on the Constitution,'' and Senate witnesses warned that 
     his confirmation would mean that ``justice for women will be

[[Page S7809]]

     ignored.'' John Paul Stevens was charged with ``blatant 
     insensitivity to discrimination against women.'' Anthony 
     Kennedy was scrutinized for his ``history of pro bono work 
     for the Catholic Church'' and found to be ``a deeply 
     disturbing candidate for the United States Supreme Court.'' 
     And David Souter was described as ``almost Neanderthal,'' 
     ``biased,'' and ``inflammatory.'' One senator said Souter's 
     civil rights record was ``particularly troubling'' and 
     ``raised troubling questions about the depth of his 
     commitment to the role of the Supreme Court and Congress in 
     protecting individual rights and liberties under the 
     Constitution.'' That same senator condemned Souter for making 
     ``reactionary arguments'' and for being ``willing to defend 
     the indefensible,'' and predicted that if confirmed, Souter 
     would ``turn back the clock on the historic progress of 
     recent decades.'' At Senate hearings, witnesses cried that 
     ``I tremble for this country if you confirm David Souter,'' 
     warning that ''women's lives are at stake'' and even 
     predicting that ``women will die.''
       The best apology for these ruthless and reckless attacks is 
     for them never to be repeated again. Unfortunately, the 
     record is not promising. Even before President Bush took 
     office in January 2001, the now-Senate Democrat Leader told 
     Fox News Sunday that ``we have a right to look at John 
     Ashcroft's religion,'' to determine whether there is 
     ``anything with his religious beliefs that would cause us to 
     vote against him.'' And over the last four years, this 
     president's judicial nominees have been labeled ``kooks,'' 
     ``Neanderthals,'' and ``turkeys.'' Respected public servants 
     and brilliant jurists have been called ``scary'' and 
     ``despicable.''
       Unfortunately, honest debate about a nominee's record has 
     not always been the standard, either. Records and reputations 
     have been distorted beyond recognition. Rulings that stated 
     one thing have been characterized to say precisely the 
     opposite. For example, during the debate over the nomination 
     of my former Texas Supreme Court colleague, Justice Priscilla 
     Owen, I chronicled numerous examples of her previous rulings 
     that were blatantly misrepresented by partisan opponents 
     of her nomination.
       Moreover, in recent weeks, we've begun to see a 
     particularly odd tactic take form. Some lower-court nominees 
     have been attacked for belonging to a movement that, to my 
     knowledge, does not even exist--the so-called ``Constitution 
     in Exile.'' What's more, opponents of this fictional movement 
     seem to talk out of both sides of their mouth. Senate 
     Democrats excoriated Justice Owen in part for her refusal to 
     adhere to an allegedly central tenet of the Constitution in 
     Exile--the nondelegation doctrine. And it was four Ninth 
     Circuit judges appointed by Presidents Clinton and Carter who 
     recently used another alleged doctrine of the Constitution in 
     Exile--the Commerce Clause--to strike down federal laws 
     prohibiting the use of marijuana and the possession of child 
     pornography. If a ``Constitution in Exile'' movement really 
     exists, its membership seems to include Senate Democrats and 
     Democrat-appointed federal judges.
       Reasonable lawyers can and do often disagree with one 
     another in good faith. They do so respectfully and honestly--
     without distortions and false charges of being ``out of the 
     mainstream.'' We should likewise demand that the Senate 
     restore respectful and honest standards of debate to the 
     confirmation process.
       And whoever the nominee is, the Senate should apply the 
     same fair process that has existed for over two centuries--
     and that is confirmation or rejection by majority vote. The 
     rules governing the judicial confirmation process should be 
     the same regardless of which party controls the White House 
     or the Senate. Since our nation's founding over two centuries 
     ago, the consistent Senate tradition and constitutional rule 
     for confirming judicial nominees--including nominees to the 
     Supreme Court--has been majority vote. (In the case of Abe 
     Fortas, his nomination to be chief justice was withdrawn, 
     after a procedural vote revealed that his nomination did not 
     command the support of a majority of senators.)
       Indeed, throughout history the Senate has consistently 
     confirmed judges who enjoyed majority but not 60-vote 
     support--including Clinton appointees Richard Paez, William 
     Fletcher, and Susan Oki Mollway, and Carter appointees Abner 
     Mikva and L. T. Senter. Yet for the past two years, a 
     partisan minority of senators tried to impose a 60-vote 
     standard on the confirmation of President Bush's judicial 
     nominees. Thankfully, that effort was recently repudiated, 
     when the Senate restored Senate tradition by confirming a 
     number of this president's nominees by majority vote.
       The effort to change our 200-year custom and tradition by 
     imposing a new and unprecedented supermajority requirement 
     for confirming judges is dangerous to the rule of law, 
     because it politicizes our judiciary and gives too much power 
     to special interest groups. As law professor Michael 
     Gerhardt, a top Democrat adviser on the confirmation process, 
     has written, ``the Constitution also establishes a 
     presumption of confirmation that works to the advantage of 
     the president and his nominees.'' According to Professor 
     Gerhardt, a supermajority rule for confirming judges ``is 
     problematic because it creates a presumption against 
     confirmation, shifts the balance of power to the Senate, and 
     enhances the power of the special interests.''
       Senate Democrats have recently asked to be consulted about 
     any future Supreme Court nomination--even though the 
     Constitution provides for the advice and consent of the 
     Senate, not individual senators, and only with respect to the 
     appointment, not the nomination, of any federal judge. If 
     senators want such a special role in the Supreme Court 
     nomination process, the president should first insist on 
     their commitment to the three principles described above.
       After years of unprecedented obstruction, and destructive 
     politics, we must restore dignity, honesty, respect, and 
     fairness to our Senate confirmation process. That is the only 
     way to keep politics out of the judiciary.

                          ____________________