[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 15285-15286]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    BEST WISHES TO JUSTICE O'CONNOR

  Mr. KENNEDY. Mr. President, I join my friend and colleague, the 
Senator from Arizona, Mr. McCain, in extending my best wishes to 
Justice O'Connor and thank her for her long and dedicated service to 
the Nation. She was a cheerful and thoughtful and highly respected 
member of the Court, a wise judge who served the Nation and the 
Constitution well.
  Justice O'Connor was a mainstream conservative and was confirmed 
unanimously by the Senate. I hope the President will select someone who 
meets the high standards that she set and can bring the Nation 
together, as she did.
  Our Senate debates in recent weeks have included extensive 
discussions on the need for consultation by the President with the 
Senate on potential Supreme Court nominations. But such consultation 
was not mentioned by the majority leader in his address on judges 
earlier this week, and the omission is glaring, since consultation is 
the heart of the ``advice'' requirement in the constitutional 
requirement that the President appoint judges with the ``advice and 
consent'' of the Senate.
  Under the Constitution and the Senate rules, every Senator's hands 
are on the oars of this vessel. If a substantial number of us are 
rowing in the opposite direction from the majority leader, we will not 
make much progress. But if there is a consensus as to where we want to 
go, we can get there directly and quickly.
  The 14 Senators who reached the landmark bipartisan compromise in the 
nuclear option debate made a pledge to one another and a plea to the 
President that the advice function must not be given short shrift, and 
that serious consultation with the Senate in the nomination process is 
the key to a successful confirmation process.
  Separate and independent assessments of nominations by each Senator 
are precisely what the Framers wanted us to do. They wanted Senators to 
be a check on the Executive's proposed judicial selections as a safety 
net for the Nation if the President overreaches by making excessively 
partisan or ideological nominations.
  Mr. President, all one has to do is read the debates of the 
Constitutional Convention. Our Founding Fathers considered where to 
locate the authority and the power for the naming of the judges on four 
different occasions. On three occasions, they gave it unanimously to 
the Senate--to nominate and to approve. And only in the last 8 days of 
the Constitutional Convention did they change that to make it a balance 
between the Executive and the Senate of the United States.
  No fair reading of the debates at the Constitutional Convention or 
the Federalist Papers does not recognize that this is a shared 
responsibility. The best way we carried that shared responsibility was 
if there is a recognition by the Executive that he or she--if at a time 
in the future we elect a woman--has the prime responsibility to 
nominate; but the final aspect of consenting is in the Senate.
  The process works best when there is consultation. It works best 
when, as we have seen when the leader of the conservative movement in 
this country, Ronald Reagan, took the opportunity to select Sandra Day 
O'Connor, who received a unanimous vote in the Senate, a true 
conservative. But President Reagan was setting the path for that time, 
and for future times, about how to proceed.
  That is the opportunity this President has at the present time. We 
hope he will be inspired by what President Reagan did in terms of the 
nominating process.
  Just this past week, several of the members of the group of 14 spoke 
on the floor of the Senate. Just last week, Senator Pryor gave a 
compelling explanation of the agreement. He said that he was puzzled 
because people are ignoring a section of the agreement that is as 
important as any other section, the part dealing with advice and 
consent. He spoke of the past days ``of bipartisan cooperation between 
the executive and legislative branches of Government.'' He pointed out 
that he was a signatory to a unanimously supported letter from the 
Senate minority to the President calling for consensus and cooperation 
and calling for bipartisan consultation--the best path to a fair and 
reasoned confirmation process.
  He did not demand that the President sit down with the 14 or pretend 
that they will supplant the Senate Judiciary Committee and its leaders. 
But he did urge the President to seek the counsel of Senators from both 
parties as he makes future nominations. ``Their insight,'' Senator 
Pryor said, ``could help the President steer a smoother course when it 
comes to judicial nominations. . . . Just as the 14 Senators did their 
part to smooth the way for future judicial nominations, the White House 
[can] do their part by reaching out to the coequal branch of 
Government.''
  How can anyone argue with that wise prescription? How can anyone 
ignore it, since it comes from one of those who helped bring the Senate 
back from the brink of disaster? A President would have to be 
extraordinarily imprudent not to give it great weight.
  Another of the signers on the agreement, Senator Salazar, wrote to 
the President last week with a clear message:

       A wide ranging and good faith consultation between the 
     executive and the Senate, as contemplated by the Founding 
     Fathers, is the best way to smooth the path to rapid Senate 
     consideration for all judicial nominations but will be 
     especially important if a vacancy arises on our Supreme 
     Court.

  Another of the 14 signers, Senator Nelson of Nebraska, mentioned his 
own experience in selecting judges. In his letter to the President, he 
pointed out that even though as Governor he was not required to obtain 
the advice and consent of his legislature, nevertheless he consulted a 
great deal with them and found it ``a very worthwhile and successful 
process.''
  He encouraged President Bush to reach out to both sides of the aisle 
``so we can move forward on future nominees in a positive and less 
contentious manner.'' Without this consultation, he said, there could 
be difficulties, especially regarding future Supreme Court nominations, 
that might provide the basis for blocking an up-or-down vote which 
otherwise might not exist.
  Even the President has said--once--that he would consult with 
Senators on judicial nominations, and I urge him to do so. But as yet, 
there has been no meaningful consultation with the Senate. As the 
minority leader has made clear, off-the-cuff casual discussions about 
how nice it would be if a Senator were the choice is not meaningful 
consultation. To be meaningful, consultation should include information 
about who the President is really considering so we can give responsive 
and useful advice.
  White House officials made time to meet last week with prominent 
outside allies on the right who are so sure the President will nominate 
a nonconsensus candidate that they have put an $18 million war chest in 
place to defend their nominee. Their advice to the President was clear: 
They would consent to and support any rightwing judge he selects for 
the High Court. No wonder he likes to get their advice and consent.
  The American people deserve a Senate that will be more than a 
rubberstamp for a Supreme Court nominee. A Senate that walks in 
lockstep with the White House is not doing its constitutional job. It 
is not doing the job the American people sent us here to do: to protect 
their rights and freedoms.
  If the President abuses his power and nominates someone who threatens 
to roll back the rights and freedoms of the American people, then the 
American people will insist that we oppose that nominee, and we intend 
to do so.
  Mr. President, I hope President Bush will follow Ronald Reagan's 
example and ignore the advice and arguments of

[[Page 15286]]

those who prefer an ideological activist. He knew that the best thing 
for the country would be someone who we could all unite behind, and he 
chose such a person: Sandra Day O'Connor.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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