[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 14493-14494]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             SUPREME COURT

  Mr. KENNEDY. Mr. President, on another matter, we all wish the very 
best to Chief Justice Rehnquist. He has made the quality of the Federal 
courts the special mission of his leadership, and the Nation and 
judiciary are grateful for that leadership. Hopefully, he will continue 
to serve as long as he wishes and is able.
  In the event of a resignation, a new Justice should be someone who is 
committed to the rule of law and the rights and freedoms of all 
Americans and can therefore win broad support in the Senate and the 
Nation. Like many Presidents before him, the President can easily 
choose such a nominee if he follows the constitutional requirement that 
he obtain the Senate's advice as well as its consent. I hope President 
Bush chooses the path of consultation and consensus and not the path of 
confrontation and conflict.
  The Constitution requires the Senate to be an independent check on 
the President, especially in protecting the independence and fairness 
of our judges. The Founders very deliberately made the appointment of 
Federal judges a shared responsibility of the Senate and the President. 
It is ridiculous for some on the other side to claim that the Founders 
would not have wanted such consultation to occur. In fact, the Founders 
came within a hair's breath of assigning the entire responsibility for 
appointing judges to the Senate. It was a last-minute compromise at the 
Constitutional Convention in Philadelphia in 1787 that gave the 
responsibility to the President but only with the advice and consent of 
the Senate.
  As the chairman of the Senate Judiciary Committee has clearly pointed 
out, the advice function is as important as the consent function in the 
exercise of the shared power of the President and the Senate in 
appointing

[[Page 14494]]

judges and Justices. Presidents all the way back to George Washington 
and right up to Bill Clinton have consulted with the Senate on Supreme 
Court nominations, and when they have done so the result has been a 
better Supreme Court.
  The wise procedure was made even more explicit in the memorandum of 
understanding written by the 14 Senators from both parties last month 
when they urged the President to consult with Members of both parties 
in the Senate. Why are some of our Republican colleagues in the Senate 
so opposed to such consultation? Do they fear that if the President 
seeks the advice of a broad range of Senators, he may be persuaded to 
make a consensus nomination to the Supreme Court? Are they against 
consensus? Do they see the Supreme Court nominations merely as 
political footballs in their political games? Before any person can be 
appointed to the Federal court, the Senate and the President have to 
agree that the person will be best for the whole country, not just for 
a narrow ideological and radical faction.
  Some Presidents have ignored the requirement to obtain the advice of 
the Senate, but no President can avoid the requirement to obtain the 
consent of the Senate. I certainly hope President Bush will not heed 
those who think consultation and consensus are obsolete. Whether the 
confirmation process goes smoothly will be determined by the 
President's selection.
  He can pick judges with us as the Founders wanted or he can pick 
fights with us as some of his political advisers and Senate friends 
seem to want.
  The President's choice is clear. He could follow the Constitution and 
seek the advice of the Senate before he makes a nomination. If he does 
that, the confirmation process is more likely to be expeditious, 
constructive, and a unifying force for the entire Nation. Or he can 
listen only to the advice of the fringe factions of his own party, 
people so extreme they have even called for the impeachment of six of 
the current nine Justices because those Justices refuse to bow to the 
ideological dictates of the rightwing. If he does that, the 
confirmation process will be divisive and corrosive and likely 
unsuccessful. There are hundreds if not thousands of excellent lawyers 
and judges who could be consensus choices for the Supreme Court, and 
Senators will help the President find them if he seeks our advice. If 
he takes our bipartisan advice, he will have no trouble obtaining our 
bipartisan consent.
  The next person who serves on the Supreme Court will not just serve 
for the remainder of the Bush administration. The lives and freedoms 
and rights of our children and our grandchildren may well be directly 
affected by the decisions of that Justice in the coming decades. For 
their sake and the Nation's sake we cannot accept a choice based on 
partisan politics or ideological agendas. What the Court and the Nation 
need is a demonstrated commitment to the rule of law and the basic 
values of our Constitution. I urge President Bush to listen to a 
respected former Republican, Senator John Danforth:

       If he truly wants to appoint a conservative he should make 
     sure it is a judicial conservative, someone who is going to 
     apply the law, not his political or philosophical beliefs.

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