[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 15564-15565]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   SUPREME COURT CONFIRMATION PROCESS

  Mr. FRIST. Mr. President, I will take a moment now to speak briefly 
about the confirmation process, the upcoming confirmation process of 
the new Supreme Court Justice. This morning, the Democrat leader and I 
and the chairman and ranking member of the Judiciary Committee had a 
discussion with the President of the United States which continues the 
consulting process which I would say, at least as we get started, is 
being conducted in an unprecedented way.
  Over the last few months, this Senate has made considerable progress 
with judicial nominations. We have confirmed six of the President's 
appellate court nominees and four district court nominees. I am very 
pleased with this progress. Indeed, this is real progress, especially 
when you consider each of the appeals court nominees were blocked. 
Those same people were blocked in the last Congress. That is real 
progress, working in a bipartisan way for the American people.
  Now we will be able to continue that progress. To do so, we must 
place principle before partisan politics, and we must place results 
before rhetoric. That is the challenge to the Senate. Above all, we 
need to fulfill our constitutional duty as Senators.
  Since Justice O'Connor announced her retirement now 11 days ago, the 
Supreme Court nomination has garnered a lot of attention in Washington, 
in the press, among our colleagues, and indeed all across America. As 
the President considers her replacement, many Senators have been 
talking about the issue of consultation. This raises some important 
questions: Is the President obligated to consult with Senators about a 
particular nominee? And if so, to what extent?
  Under the Constitution, the President is not obligated to consult 
with Senators before making a nomination. In fact, he is not obligated 
to consult with anyone. Indeed, the consultation is a courtesy, it is 
not a constitutional mandate. The Constitution plainly states in 
article II that the President shall nominate and the Senate shall 
provide advice and consent. That is it. Yet this White House has 
welcomed suggestions from Senators.
  On the very same day we departed for our recess, on the same day 
Justice O'Connor announced her retirement, the President personally 
engaged in the consultation process. He called Senator Reid and myself, 
the two leaders of the Senate. He called the chairman and ranking 
member of the Judiciary Committee, Senators Specter and Leahy. Since 
then, the President and the White House have continued to consult in an 
unprecedented manner and a very inclusive manner. For example, while in 
Europe at the G-8 summit with the President, White House Chief of Staff 
Andy Card made time to call a number of Senators, including Senators 
Durbin, Schumer, Kennedy, and Senator Ben Nelson. In the last few 
weeks, White House counsel Harriet Miers met one-on-one with the

[[Page 15565]]

Democrat leader, with myself, with Senator Leahy, and with Senator 
Specter. She has called a number of other Senators to discuss the 
Supreme Court vacancy specifically.
  All together, the White House has reached out to more than 60 
Senators, including more than half of the Democratic caucus and every 
single member of the Judiciary Committee. This consultation process is 
well underway and, as I mentioned earlier, continued again bright and 
early this morning when the President invited the four of us to 
breakfast, the two leaders and the two leaders of the Judiciary 
Committee, the chairman and ranking member. That meeting was 
productive. We freely exchanged views on the nomination process and 
what to expect. We discussed the type of nominee the President may want 
to consider. It was in a good spirit, bipartisan, working together, 
everyone stressing the importance of, once the nomination is made, 
having a process that would play out and have that nominee in place by 
October 3.
  I do commend the President for taking all of these steps. He is not 
obligated to consult before selecting a Supreme Court nominee, but he 
is choosing to consult. He is reaching out in this inclusive and 
bipartisan manner. It is a manner that is unprecedented.
  I understand the White House will continue to consult after the 
nomination is made. Despite this effort by the President, I am 
concerned that no amount of consultation will be sufficient for a few 
of our colleagues in this Senate, and statements will continue to be 
made. I say that because conomination rather than consultation may be 
their ultimate goal. Some Senators may prefer to choose the nominee for 
the President, but that is not the way the system works. That is not 
the way the Constitution works.
  The President has the power to nominate, and the Senate offers advice 
and consent. Again, consultation does not mean conomination; 
consultation is a courtesy of the President. It works two ways. If he 
extends it to us, as he has, we should extend it to him.
  As we look ahead, most Senators face a relatively new challenge in a 
Supreme Court nomination. We talked about it this morning at breakfast. 
More than half of us in this Senate were not here 11 years ago when the 
Senate last confirmed a Supreme Court nominee. But I am confident we 
will rise to the occasion. We should work together to ensure that the 
nomination process is fair, dignified, and respectful, and we should 
make sure that a new Justice is confirmed before the Supreme Court 
begins its new term on October 3.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York.

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