[Congressional Record Volume 151, Number 93 (Tuesday, July 12, 2005)]
[Senate]
[Pages S8110-S8111]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   SELECTING A SUPREME COURT JUSTICE

  Mr. KENNEDY. Mr. President, President Bush met this morning with the 
leaders of the Senate and the Judiciary Committee, and I am sure we all 
have the same questions. Was this really the first step in a serious 
consultation process that will be meaningful and will continue in the 
days and weeks ahead? Will the process result in an effort to select 
nominees who can bring

[[Page S8111]]

the Nation and the Senate together instead of further dividing us?
  I sincerely hope the answer to those questions is ``yes.'' 
Consultation is more than a process, it's about an outcome. I hope we 
are not just going through the motions. That will be up to the 
President. True consultation is not a one-sided conversation. The 
President must share his thoughts with all of us as well. I firmly 
believe the Nation wants and needs us to proceed in good faith and with 
open minds. The conditions are right for serious cooperation between 
the Senate and the executive, whom the Framers of the Constitution made 
``jointly'' responsible for assuring the quality and independence of 
the Federal judiciary.
  The President has won a second term and does not have to run again. 
He is freer to carry out his desire to be a uniter, not a divider, 
despite the pleas from the fringes of the party he leads.
  Notwithstanding the constant clamor from the right, the public 
obviously does not support extreme right-wing positions on key court-
related issues. Most Americans opposed the effort by some in Congress 
to order the courts to intrude into private medical decisions in the 
Schiavo case. Most Americans also rejected the idea that 200 years of 
Senate history should be reversed in order to give a narrow Senate 
majority the absolute power to approve extreme judges.
  Our constituents wonder why we seem to spend so much time shouting 
angrily at one another. ``Washington'' has lost the respect of many 
Americans because of the atmosphere of confrontation and conflict that 
pervades Congress and the executive branch. They much prefer us to 
spend more time and thought on finding common ground. They know that 
their families, their local governments, their schools, and their own 
businesses, could not function if they operated in the kind of hostile, 
polarized environment that often seems to prevail on issues here.
  Since the selection of judges is an area where the constitutional 
Framers placed the decision in the hands of the Senate and the 
President, we have a special obligation to make choices and take 
positions that facilitate cooperation and consensus, and avoid choices 
and positions that provoke confrontation and conflict.
  History demonstrates that the Senate and the President can work 
together on judicial nominations, especially Supreme Court justices. 
Many of us have been here for the nominations of numerous new 
Justices--in my case 18 of them. On 13 of those, there was a consensus, 
with close to 90 percent more of the Senators voting for confirmation. 
On 5, there was a unanimous vote in the Senate.
  It is not difficult to achieve that kind of consensus. We know what 
the Court needs and what the country expects. Nominees should be 
excellent lawyers who respect the Constitution, understand the law, and 
understand and respect the vital role of the judiciary in our 
Government. Most of the public do not want judges whose goal is to 
advance a result-oriented agenda, or to take the law on detours of 
their own. They want judges who proceed from the basic principles that 
unite us, as reflected in the Constitution and in two centuries of our 
shared history.
  Most Americans would agree with Chief Justice John Marshall that to 
keep the Constitution relevant and responsive, judges have to be 
willing to look at it not as an inflexible and technical ``legal 
code,'' but as a document that sets forth ``great outlines'' and 
important goals, with the details to be filled in later, by Congress 
and the Courts. Certainly, when the Framers wrote the copyright clause 
of the Constitution, they never contemplated computer downloading, but 
their objective in that clause is something on which laws and legal 
decisions can build.
  Of course, in the minds of most Americans, what defines this country, 
and about which our courts must be deeply concerned about is our rights 
and liberties. That is what our ancestors fought for two centuries ago. 
That is why the Framers spent so much of their time and effort on a 
governmental structure and a bill of rights establishing and protecting 
our freedoms--both freedoms to and freedoms from. That is why we fought 
a civil war to expand freedom. That is why our ancestors came to these 
shores in the 1800's 1900's why people everywhere still want to come 
here. There is no freer place in the world, and we must find judges who 
agree that their first obligation is to keep it that way: to safeguard 
those freedoms.
  Our judges must therefore be aware of freedom's history, so that they 
know what happens when we are tempted to dilute bedrock rights and 
liberties by subordinating them to short-term political expediency. The 
notorious ``Palmer raids'' after World War I, the internment of 
Japanese Americans during World War II, and the McCarthy era during the 
cold war are obvious examples of past abuses of which Supreme Court 
nominees should be well aware.
  Next only to protection of their freedoms, Americans expect and want 
fairness. That means the rights and freedoms we cherish must be 
applicable to all--rich and poor, popular and unpopular, powerful and 
powerless--especially the poor, the unpopular and the powerless who may 
have no other recourse. That is what makes America very special among 
all the nations of the world. Courts cannot cure all the ills of 
society, but a court system that purports to provide legal remedies for 
legal wrongs must make those remedies real. It cannot be credible if it 
erects impenetrable barriers of money, process, or theory that deprive 
a right of any meaningful reality.
  The American people understand that our system of checks and balances 
is a cornerstone of our basic rights and liberties. They want us to 
make sure that the judges we confirm will not permit unconstrained 
Executive power to usurp legislative power or judicial power. They 
certainly do not want the Congress or the President to control or 
interfere with the judiciary. They surely want an independent 
judiciary.
  We can look deeper into each of these general principles on which 
there is a national consensus, and find areas of agreement and 
disagreement, but they are clearly a guide for choosing a Supreme Court 
nominee who can achieve a broad consensus in Congress and the country.
  We cannot do so if we adopt an ideological standard promoted by a 
narrow group as the first principle of the process. It makes no sense 
to delegate the process to groups or their supporters within the 
government whose personal goal is to limit the range of nominees to 
those who will advance their own ideological agenda.
  Clearly, the choice is the President's. We can help him if he chooses 
the route of cooperation and consensus. Hopefully, he will not follow 
the advice of those who want to pick fights instead of picking judges.
  I would like to see a wide open process that begins with a search for 
Republicans in all walks of legal life--not just judges--selected for 
the quality of their minds and their commitment to the law, rather than 
for their adherence to extreme ideologies. I am confident such a search 
would produce a wide range of eligible candidates who might be able to 
gain a consensus in the legal profession, among the American people and 
with the Senate.
  President Bush has a unique opportunity to unite us, not divide us. 
He has an extraordinary chance to do so with this nomination and 
perhaps other Supreme Court nominations to come. If he does, American 
people and American history will thank him.
  Mr. President, I yield the floor.

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