[Congressional Record Volume 156, Number 51 (Tuesday, April 13, 2010)]
[Senate]
[Pages S2219-S2220]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     JUDICIAL CONFIRMATION PROCESS

  Mr. KYL. Madam President, I rise to talk about the judicial 
confirmation process, given the fact that President Obama will soon be 
nominating someone for the Supreme Court to replace retiring Justice 
Stevens. There has been a lot written about this subject. It would be 
useful, at least from my standpoint, to clarify or elucidate how I view 
this and how I think a lot of my colleagues do on both sides of the 
aisle.
  The question of a filibuster arises. The best way to put into context 
what folks mean when they talk about judicial activism as potentially 
bringing about a filibuster is to at least describe what I think about 
that. All of us in the Senate, whether we have supported a filibuster 
or not, would agree that all else being equal, it is not something we 
should do for judicial nominations, especially for a Supreme Court 
nomination. There has not been a successful filibuster of a Supreme 
Court nomination, thankfully, despite the fact that the last two 
nominees--especially the last nominee to the Court by President Bush, 
there was an attempt to filibuster, and even then-Senator Obama, now 
President Obama, participated in that attempt.
  What would cause Senators to not just vote against a nominee but 
actually go so far as to try to prevent the nominee from receiving a 
vote up or down?
  There is this concept of extraordinary circumstance that evolved 
about 4 years ago when the so-called Gang of 14, seven Republicans and 
seven Democrats, agreed that it would not be appropriate to filibuster 
a judicial nominee except in extraordinary circumstances. That is where 
that phrase ``extraordinary circumstance'' came about.
  There are a lot of Members of the Senate who believe one of those 
extraordinary circumstances could be a situation where a nominee is 
particularly activist in the sense that it would appear that he or she 
goes on to the bench with preconceived notions about specific kinds of 
societal issues or questions that may come before the Court and a bias 
toward resolving those matters one way or the other, as opposed to 
simply taking the facts of each case and reading the law to see what 
the precedents of the Court are, what the statute is, if there is a law 
involved, and deciding the case on the merits of that specific case 
irrespective of the judge's views about the question from a political 
or philosophical standpoint.
  There are a couple of recent examples I wanted to bring to the 
attention of my colleagues which illustrate the kind of activism to 
which I and some of my colleagues would object.
  The chairman of the Judiciary Committee, the Senator from Vermont, 
was quoted in Politico today as making a statement which I think 
illustrates the issue well. Senator Leahy is quoted as saying this, 
that he thinks one of the questions to the potential nominees is going 
to be this: ``Do you share our concern about the fact that the court

[[Page S2220]]

always seems to side with the big corporate interests against the 
average American?''
  Aside from the fact that I think that is not a fact, that the Court 
always sides with big corporate interests against the average 
American--that is, obviously, a very politically charged statement--the 
question is, Is it really appropriate to ask a potential judicial 
nominee whether that nominee is going to side with big corporate 
interests or whether the nominee would want to side with some other 
kind of interest in the litigation? Well, I think it is appropriate to 
ask whether the nominee has biases one way or the other that would 
preclude him or her from deciding a specific case on the merits of that 
case as opposed to whether, from a general philosophical standpoint, 
that nominee would be on the side of big corporate interests or always 
against the big corporate interests.
  When Chief Justice Roberts was before our committee, he was asked a 
question like this, a question about whether he thinks it would be 
appropriate to rule for the big guy or the little guy, and I think he 
said it correctly. He said: If the law supports the big guy, then the 
big guy should win the case. If the law supports the little guy, then 
the little guy should win the case. You do not go on the bench with an 
idea that: I am always going to rule against the big guy or--commenting 
on Senator Leahy's statement here--I am going to rule against big 
corporate interests. That presents a dilemma, by the way, where you 
have corporation A suing corporation B. I do not know how you are going 
to resolve that if you are always going to rule against big corporate 
interests.
  But the point is, to go on the bench with that attitude would be 
wrong. The big corporation might have the right law and facts in a 
particular case. In another case, the person suing or being sued by the 
big corporate interest might have the law and the facts on their side. 
That should be the determination of how the case comes out, not your 
preconceived notions--for example, your intention to always rule 
against ``big corporate interests.''
  Here is another example: One of my colleagues on the Judiciary 
Committee on a television program said he wanted to see a nominee who 
would be hard on Executive power. We have three branches of government: 
the executive, the legislative, and the judicial. The Constitution sets 
up a delicate balance among those three branches of government, and 
there is a constant tension between the powers exerted by the branches 
and against the branches. Those tensions result in litigation 
sometimes.
  Sometimes there is a claim that the Executive is taking too much 
power unto himself. That charge was made against virtually every 
President who, in my memory, has ever served. It certainly is being 
made against the President today. But you do not go on the bench with 
the notion that: If a case ever comes before me involving a contest of 
whether the Executive has the power to do something versus the 
legislature, for example, I am going to rule against the Executive, I 
am going to be hard on Executive power. That would be wrong. You do not 
even know what the facts of the case are and what the precedents might 
be relating to those particular facts.
  The ACTING PRESIDENT pro tempore. The Senator has used 7 minutes.
  Mr. KYL. Thank you, Madam President. I appreciate it.
  I will conclude with this particular example: You want a judge who is 
going to be on the Court to say: I understand the balance of power. I 
have read the law, and I understand the precedents that relate to this 
particular kind of fact pattern. And based on the law and based on 
these facts in this particular case, I believe that either the 
Executive should have the power or not. But I do not come to that 
conclusion based upon a preconceived political, ideological notion that 
we need to rein in Executive power any more than I believe we should 
rein in legislative power or judicial power.
  This is what a lot of us mean when we talk about judicial activism. 
It is the difference between someone who comes to the Court with firmly 
held philosophical beliefs that would cause that individual to be more 
predisposed to rule on the basis of those beliefs than on the facts of 
the case or the law in any particular situation. So when my colleagues 
on the Democratic side say they are looking for a nominee who will have 
a penchant for ruling in a particular way in particular cases, you will 
see objections from people like me who will say: No, that is wrong. 
That is activism. That is basing decisions on ideology rather than on 
what the law is.
  I will conclude by saying this: The President has it fully within his 
power to nominate a candidate for Supreme Court Justice who generally 
has been seen as deciding cases based on their merits rather than from 
an ideological perspective. But to the extent the President chooses 
someone who has been very active politically and has expressed strong 
political views or who from the bench has seemingly made decisions 
based upon a preconceived ideological notion rather than on the basis 
of the facts and law to come before him or her, in that situation, 
then, you would tempt opposition and potentially even a filibuster 
depending upon how serious the situation was or how extraordinary it 
was, to cite the particular phrase.
  So I hope that sort of sets the groundwork here for our evaluation of 
the President's nominee and for a public understanding of the 
circumstances under which some of us would oppose a nominee and under 
which perhaps even, in an extraordinary situation, a filibuster would 
result. I certainly hope that is not the case, that that does not 
happen.
  I am sure the President realizes that if he nominates someone who 
does come clearly to the attention of the Senate from a perspective of 
evenhanded justice, that nominee will be treated fairly, that the 
process could move much more quickly, and that the outcome can be much 
more favorable.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.

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