[Congressional Record Volume 155, Number 68 (Tuesday, May 5, 2009)]
[Senate]
[Pages S5087-S5088]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        REPLACING JUSTICE SOUTER

  Mr. McCONNELL. Mr. President, Justice Souter's decision last week to 
retire from the Supreme Court presents us with an opportunity to 
prepare for an important debate about the role of the courts and the 
meaning of the Constitution. Of all the Senate's duties, few have come 
to enliven our civic life as much as the consideration of a Supreme 
Court nominee.
  Justice Souter never made a secret of the fact that he prefers New 
Hampshire to Washington, and the fact that he has served so long in 
spite of that preference speaks of a deep commitment to public service. 
As Justice Souter returns to New Hampshire, we thank him for his many 
years of dedicated service.
  Now attention turns to the President's eventual nominee.
  Republicans are hopeful that President Obama will choose someone with 
the same qualities that have always characterized a good judge: superb 
legal ability, personal integrity, sound temperament, and, above all, 
an evenhanded reading of the law.
  These are the qualities Americans have always looked for in their 
judges. Any judge who has them can fulfill his or her judicial oath to 
``administer justice without respect to persons and do equal right to 
the poor and to the rich.'' And these are the qualities that we should 
expect of any nominee to the highest court in the land.
  Over the years, there has been a growing tendency among some on the 
left to pick or promote judges based on policy and political 
preferences, and President Obama's past statements on judicial 
appointments strongly suggest that he shares this view.
  As a candidate for President, he said that his criteria for a 
judicial nominee would be someone who would empathize with particular 
parties or particular groups. This viewpoint was evident again last 
week when, in describing a good nominee, the President seemed to stress 
empathy over and above a judge's role of applying the law without 
prejudice.
  The problem with this philosophy is that it arises out of the 
misguided notion that the courts are simply an extension of the 
legislative branch rather

[[Page S5088]]

than a check on it. Americans do not want judges to view any group or 
individual who walks into the courtroom as being more equal than any 
other group or individual. They expect someone who will apply the law 
equally to everyone, so everyone has a fair shake.
  Americans expect, and should receive, equal treatment whether they 
are in small claims court or the Supreme Court. And any judge who 
pushes for an outcome based on their own personal opinion of what is 
fair undermines that basic trust Americans have always had and should 
always expect in an American court of law.
  The President is free to nominate whomever he likes. But picking 
judges based on his or her perceived sympathy for certain groups or 
individuals undermines the faith Americans have in our judicial system. 
So throughout this nomination process, the impartiality of judges is a 
principle that all of us should strongly defend.
  In a nation of laws, the question is not whether a judge will be on 
the side of one group or another. It is not ``whose side,'' the judge 
is ``on,'' as a senior Democrat on the Judiciary Committee framed the 
issue during another debate over a Supreme Court nominee. The issue is 
whether he or she will apply the law evenhandedly.
  Once the President chooses his nominee, Senate Republicans will work 
to ensure the Senate can conduct a thorough review of their record, and 
a full and fair debate over his or her qualifications for the job. This 
is a responsibility we take seriously, and one that the American people 
expect us to carry out with the utmost deliberation.

                          ____________________