[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.
____________________