[Congressional Record (Bound Edition), Volume 149 (2003), Part 12]
[Senate]
[Page 16883]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       SUPREME COURT NOMINATIONS

  Mr. KENNEDY. Madam President, in considering potential nominees for a 
possible vacancy on the Supreme Court, I hope President Bush will 
consider the example of earlier Presidents who followed both the letter 
and the spirit of the Constitution, and fully respected the role the 
Framers gave the Senate to share with the President.
  The Framers originally rejected a proposal that the President alone 
appoint judges, and they seriously considered allowing the Senate to 
exercise that responsibility alone. In the end, they decided to make 
that responsibility a shared function of the President and the Senate, 
through the ``advice and consent'' mechanism.
  There is nothing ``novel'' or extra-constitutional about Presidents 
consulting in advance with the Senate before nominating a person to a 
lifetime position on the Supreme Court. George Washington wanted the 
Senate to be his own ``privy council'' and refused to do so, but for 
the past century many Presidents have taken the opposite course. They 
have decided not only that such consultation was fully consistent with 
the Framers' system of checks and balances, but also that their concern 
for achieving a consensus in the selection of strong and independent 
Justices could be best achieved by consulting in advance with the 
Senate.
  Presidents who did so often achieved broad Senate and national 
support for their nominees, avoided divisive and unnecessary battles, 
and prevented embarrassing rejections of their selections.
  President Theodore Roosevelt frequently consulted with Senators 
before making Supreme Court nominations, including the 1902 nomination 
of Oliver Wendell Holmes, Jr., who was confirmed the day he was 
nominated.
  In 1932, President Herbert Hoover presented his list of possible 
nominees to Senator William Borah, a fellow Republican. Benjamin 
Cardozo, a Democrat, was at the bottom of the President's list, but 
Senator Borah persuaded the President to nominate Cardozo, who was 
confirmed nine days after his nomination was sent to the Senate.
  President Franklin Roosevelt also shred his list of potential 
nominees with Senator Borah in advance. Senator Borah expressed his 
enthusiastic support for William O. Douglas, who was quickly confirmed 
by a vote of 62-4.
  In 1975 President Gerald Ford shared his list of 11 prospective 
nominees with both the Senate and the American Bar Association. 
Although there was support for others on the list, his choice, John 
Paul Stevens, was confirmed in three weeks by a vote of 98-0.
  President Bill Clinton consulted with Senators from both parties on 
each of his two Supreme Court nominees. Senator Dole, Senator Hatch, 
and others advised him that his favored candidate would be 
controversial, and supported the nomination of Ruth Bader Ginsburg. 
Later, Senators from both parties, including Senator Hatch, recommended 
Stephen Breyer. Both Ginsburg and Breyer were quickly and 
overwhelmingly confirmed.
  Nominations which generated the most controversy were those which had 
little or no consultation with the Senate, or where the President 
ignored advice of the Senate.
  President Richard Nixon sought little or no direct advice from 
Senators who were not friends and supporters of his prospective 
nominees. He suffered two consecutive defeats, and the opponents 
included members and party leaders of the President's own party.
  President Ronald Reagan's Chief of Staff, former Senator Howard 
Baker, consulted with leading Senate Democrats, and received strong 
advice that Robert Bork would have substantial opposition. Bork was 
nominated nevertheless, and was defeated by a vote of 58-42.
  There is no down-side to serious consultation with the Senate. If a 
well-known prospective nominee has significant bipartisan support, the 
President will know in advance that he is likely to achieve prompt 
confirmation of the nominee, without a divisive debate in the Senate 
that would also be divisive for the country. The selection of a Supreme 
Court Justice with broad national support would help bring the country 
together at a time when we are facing many difficult challenges, and I 
hope very much that the Members of the Senate can work closely with the 
President and with one another to achieve that goal.

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