[Congressional Record Volume 151, Number 91 (Friday, July 1, 2005)]
[Senate]
[Pages S7898-S7899]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       SUPREME COURT NOMINATIONS

  Mr. WARNER. Mr. President, today our President, President Bush, spoke 
so eloquently upon learning of Justice O'Connor's desire to step down 
and spend more time with her husband. I think that is such a beautiful 
and warm way to send a message all across America.
  I say, with a deep sense of humility, I consider her a friend. I am 
privileged to know her. I know her husband. He loves the outdoors. He 
loves the golf game. They are a wonderful couple who have inspired 
America.
  It is interesting, I also heard, this morning, another broadcast in 
which a retired Federal circuit court judge--an individual well known 
to the Senate, well known to America--in commenting upon this 
retirement, did so in a way that left me troubled. That is what brings 
me to the floor. I am not sure he paid the respect this great Justice 
is owed. I will let people who desire to look at his remarks.
  But then he said, in so many words--and used the word--that the 
Senate advice and consent process today is ``corrupt.'' That moved me 
to the point where I felt compelled to speak out today.
  What a privilege it has been for me, on behalf of Virginia, to stand 
on this floor for 27 years and to participate in debates and vote for 
the best interests of our Nation and the Commonwealth of Virginia.
  As I look at Justice O'Connor's record, it exemplifies to me a 
quotation from Shakespeare that I have always tried to follow: Unto 
thine own self always be true.
  The record will show and history will record the magnificent way in 
which she discharged public office not only in the Supreme Court but, 
indeed, back in the legislative body of her beloved State of Arizona.
  I will participate with my colleagues in this debate, this careful 
and fair and objective consideration of that individual selected by our 
President. As sure as I am standing here, I am confident that when it 
reaches the vote--and I think we will have an up-or-down vote; I will 
certainly do what I can to ensure that takes place--the American public 
will look back upon the duty of the Senate, under the Constitution, as 
having been fulfilled with dignity and in a manner to reflect 
confidence within this great Nation and our citizens.
  As you know, Mr. President, the executive branch, with the President, 
has a role in this nomination coequal to that of the Senate. In 
studying history, the role of the President is set out so carefully. I 
did this research when I worked with the ``Gang of 14,'' which I will 
mention here momentarily.
  But Alexander Hamilton, in Federalist Paper No. 66, said:

       It will be the office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no----

  I repeat: ``no''----

     exertion of choice on the part of the Senate.

       They may defeat one choice of the Executive----

  I hope that does not happen in this case----

     and oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice of the 
     President.

  How clear that is. And working with Senator Byrd and the other 
members of the 14 Senators who got together--and, by the way, I think 
the work of that group reflects credit on this institution--some six 
Federal judges are now serving our Nation as a consequence of their 
work, work which I always felt was in support of the Senate leadership 
and their valiant efforts to see that the consideration by Senators of 
nominees be fair and expeditious.
  But in the context of our sort of agreement--and I quote from it----

       We [the 14] 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.

  As it has in contemporary times.
  The Founding Fathers put the word ``advice'' in there, drawn from our 
English language, clearly defined in dictionaries and by precedent. It 
simply speaks to the role of the Senate and its ability to counsel with 
the President. I am confident that will take place.
  This is a magnificent opportunity for the President, this nomination, 
in so many respects. Clearly, he is fully entitled, under the 
Constitution, to select an individual whose philosophy is basically 
consistent with the core values of our President and his goals that he 
wishes to achieve, not only during the course of his Presidency but 
with confirmation, judicial nominees remain on for some 10, 15, 20, 25 
years--long after the President has stepped down from office. So that 
shows you the value of this nomination.
  But in this instance, our President has an opportunity, against a 
background of troubled times in our country. We are engaged in a very 
difficult war on terrorism.
  Great sacrifices are being made by our country. He can step forward 
and be a uniter, not a divider, in this nomination by selecting someone 
who will gain the confidence of the majority of Americans, someone who 
will enable the two aisles here to remove the center aisle, and we can 
join in a bipartisan way and give strong ratification to the 
President's choice.
  It is interesting. I went back to General Eisenhower. I reached back 
50 years to examine the manner in which the President and the Senate 
worked together under this advice and consent clause. In that 50-year 
period, there have been 27 total nominees. Fifteen, better than half, 
were passed by the Senate either with voice vote--and as the Presiding 
Officer knows full well, that means total unanimity in the Senate--or 
with more than 80 votes, so 3 by voice and over half of those by 80 
votes. Only 1 of the 27 passed by fewer than 60 votes, that threshold 
that describes the filibuster. Three were rejected by the Senate and 
one withdrew. To me, that shows action in history for a half a century, 
consistent with what the Founding Fathers devised in this magnificent 
Constitution of ours.
  That individual selected by the President--I suppose he or she, as 
the case may be--will be labeled a conservative. That is fine. That 
doesn't trouble me at all. That doesn't divide. That is consistent with 
the President's basic philosophy. But if we can put on the bench of the 
highest Court in the land, a Court that decides literally decisions 
which affect every one of us--every single American is affected by 
their decisions--an individual who will begin with the confidence of 
the American public as reflected in a strong bipartisan vote in this 
Chamber, that will be a great legacy for the President as a uniter and 
not a divider.
  I wish to reflect on the consultation. I am confident it will take 
place. There is no way of trying to describe it. It is up to the 
President. It is within his discretion. But I have confidence it will 
take place in a manner that history will document that will be more 
than adequate for the purpose.
  I also listened to a report this morning where one group has been 
gathering

[[Page S7899]]

funds. They said they had $20 million ready to throw behind the 
President's nominee. Another group had an equal amount of money to 
throw behind such opposition as to mount against the nominee. They have 
a perfect right under freedom of speech, the magnificence of this 
country, but it would be my hope that they will play a constructive 
role and not look at this great moment in history of the selection of a 
Justice to the Court as something likened to a Super Bowl where the 
sides get in and start the clash. Rather, they should view themselves 
as being in consultation with the Senate--Senators individually and 
collectively--and do it in a constructive way.
  I remember so well the role of the outside groups in that 
extraordinary chapter of Senate history with regard to the Schiavo 
case. History will record the viewpoints of many as to how it was done. 
I myself will forever be concerned about the role, in particular, of 
the Congress and, most specifically, the Senate. I remember Palm Sunday 
when only three Senators, myself and two others, were on this floor, at 
which time we didn't have time to speak. We could only include a 
written statement which is in the Congressional Record. And I did so, 
expressing my disagreement with having the Senate go on record as 
supporting a greater role of the Federal judiciary.
  I felt the tenth amendment clearly established the prerogatives of 
the several States to handle matters of this type. I was the sole 
``no'' vote that day. But only three Senators acted. The news broadcast 
said the Senate of the United States has decided. I will often reflect 
on that moment as to whether it did. Although accurate, three Senators 
can act on behalf of the body, but that was an example of where the 
outside interested parties became quite overbearing and in some ways 
distorted the important issue. I don't disagree with those who felt 
different than I. But they obfuscated and overdramatized the issue.
  There is nothing more important than trying to save a life. I 
understand that. I respect that. But I use that as an example to say, 
we cannot, in my judgment, in these troubled times in our history 
experience another chapter such as that.
  This nominee, I am confident, will be one who, first, with the 
selection by the President and then, in the course of review by the 
Judiciary Committee and the full Senate must be viewed as one committed 
to uphold and support the Constitution of the United States. The term 
``activist'' jurist is one that troubles me and, indeed, many people, 
because it is the Congress of the United States with regard to Federal 
legislation and the respective 50 State legislatures. They are the 
bodies to write the law, not the State/Federal judiciary.
  We have seen a tendency recently for opinions to reflect a decision 
that doesn't necessarily rest on the core values of the Constitution 
but, rather, the core values of the writers of the opinion.
  I hope we see that this process moves forward and reflects great 
credit on our President and credit on this institution. As I say, the 
gang of 14 played a constructive role in the history of this body. The 
question was the use or nonuse of what was termed ``the nuclear 
option'' to set aside the 60-vote rule of the Senate. It is my fervent 
hope we don't reach that option--that option is still on the table; the 
record is clear--that we don't have any tendency or recourse to go to 
that because in these troubled times, when this country needs to be 
united, we would not want to send to the Supreme Court, by virtue of a 
vote under the doctrine of the nuclear option, that individual who 
would be tattooed for life. That is not what we need.
  We want that individual to go up there with the full confidence and 
trust of the American people, the widest margin of people that could 
possibly be drawn together, and to represent them and to make decisions 
which they will perceive were done by that individual and the other 
members of the Justices of the Court that are in the best interest of 
the country and each individual American.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     the retirement of robert abbey

  Mr. REID. Mr. President, I rise today on the occasion of his 
retirement, to honor the 27 years of public service of Robert V. Abbey 
of Reno, NV. Bob hails originally from Mississippi. He was born in 
Clarksdale and earned his bachelor's degree in Resource Management at 
the University of Southern Mississippi. Over the past 8 years, I am 
proud to say he has become a Nevadan.
  Bob began his public service working for the U.S. Army Corps of 
Engineers. Later he moved to the Bureau of Land Management where he has 
distinguished himself as a dedicated land manager, visionary leader, 
and exceptional citizen.
  Bob's early career at BLM included tours of duty as a budget analyst 
in Washington, DC; assistant district manager in Yuma, AZ; district 
manager in Jackson, MS; and associate and acting State director in 
Colorado. Since the fall of 1997, Bob has served as the Nevada State 
diretor of the BLM. His job may very well be the toughest in Nevada and 
perhaps in the ranks of the BLM; in any case, it is among the most 
important for both.
  Although his address has changed many times during his career, his 
commitment to public lands and public service has never wavered. The 
West and Nevada are better for it.
  Today, Bob Abbey leads a staff of 750 employees who manage 48 million 
acres of public land in Nevada. He has led the Nevada BLM during an 
exciting and historic time. Increased public land use, record 
population growth, evolving management mandates and shrinking budgets 
represent just a few of the challenges facing the Nevada BLM. Bob Abbey 
has handled every difficulty with grace and vision.
  During his tenure, Bob directed the implementation of the Southern 
Nevada Public Lands Management Act. This is no small task given that 
Clark County, NV leads the Nation in sustained growth and development 
and ever increasing recreational use of public lands.
  Bob and his staff also helped me and the other members of the Nevada 
congressional delegation in the development of the Clark and Lincoln 
County land bills. These bills were among the most significant public 
lands legislation in the 107th and 108th Congresses, respectively, and 
Bob's leadership helped make them possible.
  Bob's motto that we have more in common than our differences has set 
the tone for the best working relationships between Federal land 
managers and Nevadans in my memory. He has inspired his employees to 
solve problems, take pride in their work, and serve the public with 
distinction. The results serve as testament to his character, courage, 
and conviction.
  At the end of next week, Bob Abbey will retire from Federal service 
with a remarkable record of achievements. But perhaps his greatest 
contribution as a land manager will come to fruition while he is 
enjoying his retirement with his wife Linda.
  After wildfires devastated vast swaths of rangeland in Nevada and 
other Western States in 1999 and 2000, Bob played a key role in 
crafting a blueprint for rangeland and ecosystem restoration in the 
West. The so-called Great Basin Restoration Initiative is a grand 
vision and roadmap for heaIing the landscape in Nevada. Unfortunately, 
to date, the BLM and Department of Interior have yet to match Bob's 
vision with appropriate funding. It is my hope that this is a temporary 
delay and that one day soon, a thriving Great Basin ecosystem will 
serve as the enduring legacy of Bob Abbey's public service.
  Although I regret that Bob Abbey is retiring, I know I speak for 
thousands of Nevadans when I thank him for his exemplary public service 
and wish him well with his future endeavors. We know Bob has made 
Nevada and our Nation a better place.

                          ____________________