[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 15171-15172]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    POTENTIAL SUPREME COURT VACANCY

  Mr. REID. Mr. President, as the Senate prepares to adjourn for the 
July 4 recess, one of the most noteworthy developments is an event that 
has not occurred. Despite widespread speculation, there have been no 
announced retirements from the United States Supreme Court.
  We are all aware that Chief Justice Rehnquist has faced health 
challenges. I am impressed with his courage and fortitude.
  Many feared he would not be able to attend the January inauguration 
to administer the oath of office to President Bush. But there he was, 
braving the cold to perform his constitutional duty. Many thought he 
would retire from the Court long before the end of the Supreme Court 
term. But there he was last Monday, presiding over the Court's final 
session, and announcing an important First Amendment decision in which 
he had authored the majority opinion.
  I was not a member of the Senate when William Rehnquist was nominated 
as an Associate Justice in 1971 or when he was promoted to be Chief 
Justice in 1986. He was not unanimously confirmed to either position. 
But the Chief Justice has won many new admirers in the Senate in recent 
years. We appreciate the dignity and clarity with which he has led the 
Federal judiciary for almost 20 years. I know I speak for all of my 
colleagues in commending Chief Justice Rehnquist for his tremendous 
service to the Court and to the country. I hope he stays on the bench 
for years to come.
  Whenever the Chief Justice or any of the Associate Justices decide to 
retire, I hope and expect that the President will take seriously the 
``Advice'' part of ``Advice and Consent.'' This is not just about the 
Supreme Court. The President should seek the advice of the Senate 
regarding all nominees. But consultation regarding a Supreme Court 
vacancy is especially important.
  The Court is of paramount importance in the life of the Nation. These 
justices deal with complex legal issues that affect the lives of all 
Americans. It is the final guardian of our rights and liberties.
  There is a long tradition of Presidents consulting with the Senate 
before a Supreme Court nomination occurs.
  In 1869, President Grant appointed Edwin Stanton to the Supreme Court 
in response to a petition from Senators and House members.
  In 1932, President Hoover gave Senator William Borah a list of the 
candidates he was considering to replace Justice Oliver Wendell Holmes. 
Borah persuaded Hoover to move the name that was on the bottom of the 
list to the top. That candidate, Benjamin Cardozo, was confirmed 
unanimously.
  In his autobiography, Senator Hatch takes credit for convincing 
President Clinton not to send the Senate potentially controversial 
nominees and instead to nominate individuals with broad bipartisan 
support. Both of President Clinton's nominees, Ruth Bader Ginsburg and 
Stephen Breyer, were easily confirmed with Senator Hatch's support.
  Last week, 44 Senators sent President Bush a letter urging him to use 
the advice and consent process to unite the country behind a consensus 
nominee. This built on the bipartisan agreement that averted the 
nuclear option earlier this year. At least two of the signers of that 
agreement, Senators Nelson of Nebraska and Salazar of Colorado have 
separately written to the President to urge consultation. A third 
signer, Senator Pryor, spoke about the importance of consultation on 
the Senate floor last week.
  Consultation with the Senate is not an end in itself. The purpose of 
consultation is to help the President arrive at a consensus choice for 
the Court, a nominee like Sandra Day O'Connor who will bring the 
country together, not tear it apart.
  Meaningful consultation will ensure judges who are fair and 
independent and who are committed to protecting individual rights and 
freedoms.
  Meaningful consultation will ensure that the President's judicial 
nominees are highly qualified men and women whose views are within the 
broad constitutional mainstream.
  And meaningful consultation will help us avoid a divisive episode 
like we saw over the nuclear option. There are too many important 
issues facing this country to waste the Senate's time fighting over 
radical extremist judges.
  I recently had the opportunity to meet with the White House Counsel, 
Harriet Miers. Ms. Miers made clear that the White House is not yet 
prepared to engage in formal consultation with us regarding a possible 
Supreme Court vacancy because there have been no announced retirements 
from the Court. I respect that position.
  When a vacancy does arise, the President should obtain the views of 
Senate Democrats about individuals under consideration for appointment 
to the Court, consistent with the advice and consent clause of the 
Constitution.
  Let me be clear: real consultation does not consist of the White 
House asking Senators for the names of individuals we think should be 
considered for appointment to the Court. I am happy to provide such 
names, but that is not enough. Meaningful consultation under the advice 
and consent clause means that the President presents the names of 
individuals he is seriously considering and seeks our views on those 
candidates.
  And of course the nomination of a candidate is just the beginning of 
the Senate process. There will be comprehensive hearings in the Senate 
Judiciary Committee, and a thorough debate in the full Senate. Any 
advice that Senators provide to the President in advance of a 
nomination is of course subject to review in light of information that 
comes out during the confirmation process.
  As the President considers the range of individuals who might be 
considered for the Court, I hope he will not limit his search to 
sitting Federal judges. History demonstrates the value of considering 
individuals who have achieved prominence in civic life outside of the 
judiciary. In this century, such diverse figures as former President 
William Howard Taft, Alabama Senator Hugo Black, and California 
Governor Earl Warren have served with distinction on the Court.
  The Senate may be especially fertile ground for finding a Supreme 
Court justice. Including Justice Black, some 14 Senators in American 
history have served on the Court. A current or former Senator would 
bring an important perspective to the Court's understanding of 
legislative history, and the need to strike a balance between the will 
of the majority and the rights of the minority in our society.
  I have discussed publicly a number of current Senators who I believe 
are worthy of the President's consideration. Each of these Senators 
possesses relevant legal experience and enjoys the respect and 
admiration of fellow Senators.
  Above all, I urge the President to work with the Senate at the 
appropriate time to identify a consensus

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nominee who can unite the country. With our country at war and our 
economy facing challenges, we don't have time for controversial, 
confrontational judicial nominations. We need cooperation and 
consensus.
  Our Founding Fathers were brilliant to give the executive and the 
legislative branch shared responsibility for choosing members of the 
judicial branch. When properly executed, this division of labor ensures 
that our judges will be independent, and our rights will be protected.

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