[Congressional Record (Bound Edition), Volume 151 (2005), Part 11]
[Senate]
[Pages 15868-15869]
[From the U.S. Government Publishing Office, www.gpo.gov]




             JUDICIAL PHILOSOPHY OF SUPREME COURT NOMINEES

  Mr. KENNEDY. Mr. President, President Bush and Members of the Senate 
will soon have the duty of appointing a new justice to the Supreme 
Court. In recent days, there have been differences of opinion over 
whether we should consider the judicial philosophy of nominees to the 
Supreme Court as part of the appointment process. I hope the 
President's remarks yesterday make clear once and for all that judicial 
philosophy is an important part of a nominee's qualifications. 
President Bush said that judicial philosophy would be one of the 
criteria he used to choose a nominee, along with character, integrity, 
and the ability to do the job.
  I agree with President Bush that these qualities--including judicial 
philosophy--are important to whether a nominee is fit to serve on the 
Court. Many times in recent months, and during his campaign for re-
election, President Bush has said that nominees to the Federal courts 
must interpret the law, not make the law. He has said that we should 
appoint persons who would not try to legislate from the bench. This 
view has been echoed by Members of the Senate, both Republican and 
Democrat, myself included. Senators of both parties agree with the 
President that we should not appoint judicial activists who would 
decide cases based on personal ideology rather than the law.
  The only way to know whether nominees have an activist judicial 
philosophy is to find out what their judicial philosophy is. That's the 
only way to know whether nominees will follow the law or attempt to 
rewrite it. We certainly can't tell judicial philosophy from nominees' 
resumes, where they went to school, or where they worked. These issues 
are relevant and should be considered as part of a nominee's 
qualifications for the Supreme Court. But a resume is no substitute for 
answering questions about whether the nominee respects the basic rights 
and freedoms on which the nation was founded.
  The American people deserve to know if a nominee would favor 
corporate or other special interests, rather than giving everyone the 
same fair hearing in deciding cases. They deserve to know whether 
nominees would respect the Constitutional power of Congress to enact 
environmental protections or if nominees are so opposed to such 
protections that they would bend or distort the law to strike them 
down.
  The American people deserve to know whether nominees would roll back 
civil rights laws or uphold the rights of the disabled, the elderly, 
and minorities. The American people are entitled to know if a nominee 
respects women's rights to equal treatment in our society and to 
privacy in making reproductive decisions.
  This does not mean every nominee should promise to rule a particular 
way in each of the cases on the Supreme Court's docket for the next 
term. It doesn't mean that nominees must state how they would rule in 
any specific case. But it does mean that the Senate should expect the 
nominee to answer questions about important legal principles--such as 
the constitutional power of Congress to protect Americans against 
corporate abuses, the right to equal treatment, Americans' right to 
privacy in making personal decisions about medical care, the principle 
of non-discrimination, and the right to be free from unwarranted 
government intrusion.

[[Page 15869]]

  The American people deserve to know the answers to those questions, 
and the Senate's review is the only way that they can get those 
answers. The nominee will need to say more than ``trust me'' in 
response to these important questions, because so much hangs in the 
balance.
  The importance of judicial philosophy in deciding whether to confirm 
a Supreme Court justice is nothing new. During the first 100 years 
after ratification of the Constitution, 21 of 81 Supreme Court 
nominations--one out of four--were rejected, withdrawn, or not acted 
on.
  Since 1968, a third of all Supreme Court nominations have failed. 
During these confirmation debates, ideology often mattered. John 
Rutledge, nominated by George Washington, failed to win confirmation as 
Chief Justice in 1795, when Alexander Hamilton and other Federalists 
opposed him because of his position on the Jay Treaty.
  In 1811, James Madison's nominee, Alexander Wolcott, was defeated 
because of his enforcement of the embargo and other trade laws opposed 
by Federalists in the Senate.
  A nominee of President Polk was rejected because of his anti-
immigration position. A nominee of President Hoover was not confirmed 
because of his anti-labor view. The Senate failed to elevate Justice 
Abe Fortas to Chief Justice in 1968, when Senate Republicans 
filibustered his nomination because they objected to his decisions on 
free speech and defendants' rights.
  Chief Justice Rehnquist himself has stated that it is appropriate for 
the Senate to ask about a Supreme Court nominee's judicial philosophy, 
stating that this ``has always seemed . . . entirely consistent with 
our [C]onstitution and serves as a way of reconciling judicial 
independence with majority rule.''
  As our colleague from Mississippi, Senator Trent Lott, stated in 
1996, ``[w]e should look not only at their education, background, and 
qualifications, but also . . . what is their philosophy with regard to 
the judiciary and how they may be ruling.'' In Senator Lott's words, 
``if we do not ask questions, then we will be shirking our 
responsibilities.''
  Earlier this month, the Senator from Texas, Senator Cornyn, stated 
that while nominees should not be asked to promise how they will vote 
in a specific case, ``it's an appropriate question to ask what their 
views are on cases that have been decided and judicial opinions that 
have been written.''
  We should all agree that it's appropriate for the Senate to ask 
nominees about the issues most important to Americans. The American 
people expect and deserve to learn about a nominee's legal philosophy 
during the hearings on any Supreme Court nominee. We should do all we 
can to see that the process provides clear answers, so that the 
American people will have full confidence in the outcome.

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