[Congressional Record (Bound Edition), Volume 151 (2005), Part 12]
[Senate]
[Pages 16087-16089]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           THE SUPREME COURT

  Mr. CORNYN. Mr. President, I yield myself 15 minutes out of the 
majority time, the manager's time, to address a different subject, but 
one that is timely given some developments earlier today.
  On July 3, the Washington Post reported that Democrats signaled that 
whoever the nominee to the U.S. Supreme Court is, their three likely 
lines of attack will be to assert that the White House did not consult 
sufficiently, to paint the nominee as ideologically extreme, and to 
finally assert that the Senate has not received sufficient documents 
about the candidate.

[[Page 16088]]

  I will address the second prong of this three-prong attack. That has 
to do with ideology and the personal views of the nominee, or perhaps 
asking the nominee to predict how they would likely rule on an issue 
were it to come before the U.S. Supreme Court.
  Over the past few days, some Members on the other side of the aisle 
have stated their intention to ask whomever the President nominates to 
the Supreme Court a series of questions on where that nominee stands on 
controversial political issues. For example, yesterday the senior 
Senator from Massachusetts said he wants to know whether the nominee 
supports laws related to the environment, civil rights, and abortion. 
The senior Senator from New York today said he wants to know what the 
nominee thinks about any one of a number of things, including the 
appropriate role of religion in government and how to balance 
environmental interests against energy interests. Indeed, the senior 
Senator from New York has said that ``every question is a legitimate 
question, period.'' These questions must be answered, they say, because 
they have a right to know what the nominee's so-called ``judicial 
philosophy'' is.
  Let me be clear. Any one of the 100 Senators who has been elected and 
who serves in this Senate has a right under the First Amendment, if 
nowhere else, to ask any question they want. However, these statements 
of the last few days indicating the scope of questions that some 
Senators intend to ask represents something of a change of heart.
  During Justice O'Connor's confirmation hearing, for example, the 
Senator from Massachusetts declared:

        . . . [i]t is offensive to suggest that a potential 
     Justice of the Supreme Court must pass some presumed test of 
     judicial philosophy. It is even more offensive to suggest 
     that a potential Justice must pass the litmus test of any 
     single-interest group.

  The Senator's colleagues have always agreed with him on that. And I 
agree with the position he took at that time, but not with the position 
he is taking more recently.
  Also during Justice O'Connor's confirmation hearing, the senior 
Senator from Delaware noted:

       [w]e are not attempting to determine whether or not the 
     nominee agrees with all of us on each and every pressing 
     social or legal issue of the day. Indeed, if that were the 
     test, no one would ever pass by this committee, much less the 
     full Senate.

  Similarly, the senior Senator from Vermont declared during the same 
hearing that:

       Republican or Democrat, a conservative or a liberal. That's 
     not the issue. The issue is one of competence and whether she 
     has a sense of fairness.

  The question is, Why the change of heart? I submit that one potential 
answer is because it has been a long time since the Senate has 
considered a Supreme Court nominee and perhaps some need to be reminded 
what the role of a judge in a democracy is.
  As a former judge myself, let me share a few observations with my 
colleagues. Put simply, judges are not politicians. Judges do not vote 
on cases like politicians vote on legislation. Judges do not vote for 
or against environmental laws because their constituents demand it or 
because their consciences tell them to. They are supposed to rule on 
cases only in accordance with the law as written by the people's 
representatives. If a judge disagrees with the law as written, then he 
or she is not supposed to substitute his or her views for the people's 
views. Any other approach is simply inconsistent with democratic 
theory, with government by the people, and with respect for the rule of 
law.
  It is worth noting that this has not always been the case. The 
judicial system in England during and before the American Revolution 
was one where judges made the law. This is called our common law system 
or common law heritage. Judges made up the law as they went along, 
trying to divine the best rules to govern the interaction between 
citizens. This was a heady power, the common law-making power, to 
decide what policies best serve mankind.
  This is not, however, the judicial system created by our Founding 
Fathers or by the Federal Constitution to govern the Federal courts, 
including the U.S. Supreme Court.
  The Founding Fathers did not believe it was consistent with democracy 
to allow unelected judges to make laws that govern the people. We know 
this for three reasons. First, we know this because the Constitution 
says so. The Constitution quite clearly at the very outset says ``all 
legislative powers''--the power to make the law--``shall be vested in 
[the] Congress.'' This means no power to make law is vested in our 
courts, even in the U.S. Supreme Court.
  Second, we know this because the Framers told us explicitly this is 
what they had envisioned. In Federalist Paper No. 47, for example, 
James Madison noted:

       [W]ere the power of judging joined with the legislative, 
     the life and liberty of the [people] would be exposed to 
     arbitrary control, for the judge would then be the 
     legislator.

  Finally, we know this because the Supreme Court has also told us so. 
In 1938, in the famous case of Erie v. Tompkins, the Supreme Court 
declared in no uncertain terms that ``[t]here is no federal general 
common law.''
  Judges in our Federal system do not make law, or I should say are not 
supposed to make law. The laws are made for them and indeed for the 
entire Nation by the people's representatives in the form of statutes 
enacted by the Congress and in the form of the Constitution that we the 
people have ratified to govern our affairs. These are legal texts and 
they are supposed to tie the hands of judges in our system. Judges in 
our system are not supposed to make up the law as they go along. They 
are simply supposed to apply the laws made by the people to the facts 
at hand.
  If the law is to change, it is because the people are the ones who 
are supposed to change it, not because judges do. Federal judges, 
again, have no general common law-making power.
  Once we remember the role of judges, unelected judges, in our 
democracy, it is clear why the questions some members of the body 
intend to propound to the President's nominees are so wrongheaded. So 
long as we satisfy ourselves that the President's nominee will do what 
the President has said he wants his nominee to do--which is to not make 
up the law but to simply implement the law as it has already been 
enacted by the people's representatives--there is simply no reason to 
demand answers from the nominee on particular cases. Indeed, the only 
possible reason a Member would ask these kinds of questions is to try 
to make political hay out of the nominee's personal views.
  Special interest groups, in order to raise money from donors, are 
pressing members of this Senate to do just that. But I sincerely hope 
we can resist the temptation to turn the impending confirmation 
hearings into a political fundraising opportunity. After all, a 
precedent for the right way to do things exists in the confirmation of 
Justice Ruth Bader Ginsburg in 1993.
  Prior to her service on the Federal bench, Justice Ginsburg, a 
distinguished jurist and liberal favorite, served as the general 
counsel for the American Civil Liberties Union, an organization that 
has championed the abolition of traditional marriage laws and 
challenged the validity of the Pledge of Allegiance for invoking the 
phrase ``One nation under God.''
  Before becoming a judge, Justice Ginsburg expressed her belief that 
traditional marriage laws are unconstitutional and that prostitution 
should be a constitutional right. She had also written that the Boy 
Scouts and Girl Scouts are discriminatory institutions and the courts 
must allow the use of taxpayer funds to pay for abortions--hardly views 
the American people would consider mainstream.
  Yet Senate Republicans and Senate Democrats alike did not try to 
exploit her personal views; rather, they overwhelmingly approved her 
nomination.
  There are other reasons why it is inappropriate to demand answers to 
questions about particular political issues. The Founding Fathers 
wanted our judges to be independent from the political branches. It 
threatens the independence of the judiciary to parade nominees in front 
of this body and then

[[Page 16089]]

to ask them to state their views on whether, for example, this body has 
the constitutional power to enact certain environmental and civil 
rights laws.
  How a nominee can remain independent if his or her confirmation is 
conditional on whether he or she pledges to uphold legislation from 
this body is beyond me. A nominee could not remain independent having 
made such a pledge, so they should not make that pledge nor, I submit, 
should they be asked to make that pledge.
  In addition, judges in our system are supposed to be impartial. That 
is why Lady Justice has always been blindfolded. It undermines a 
nominee's ability to remain impartial once he or she becomes a judge if 
he or she has already taken positions on issues that might come before 
him or her on the bench. For example, if we force nominees to pledge to 
uphold certain environmental or civil rights laws enacted by this body 
in order to win confirmation, how is a litigant, challenging one of 
those laws in court, supposed to feel when the nominee sits to hear 
that case? The litigant would certainly not feel as though he or she is 
receiving equal and open-minded justice, I can promise you that.
  It is for this reason the American Bar Association has promulgated a 
canon of judicial ethics that prohibits a nominee from making 
``pledges, promises or commitments that are inconsistent with the 
impartial performance of the adjudicative duties of the office.'' It is 
also why, as Justice Ginsburg has recently noted in an opinion she 
wrote, that, although ``how a prospective nominee for the bench would 
resolve particular contentious issues would certainly be of interest to 
the . . . Senate in the exercise of [its] confirmation power[,] . . . 
in accord with a longstanding norm, every member of [the Supreme] Court 
declined to furnish such information to the Senate.'' In other words, 
just because some Members may ask these questions does not mean the 
President's nominee should answer them. In accordance with long 
tradition and norms of the Senate in the confirmation process, they 
should not answer them.
  In conclusion, Mr. President, let me say that I hope Members 
reconsider their intention to condition the confirmation of the 
President's nominees on their adherence to a particular political 
platform. Judges are not politicians, and we do a disservice to the 
judicial branch and its role in our democracy by trying to treat them 
as such.
  Mr. President, I reserve the remainder of our time and yield the 
floor.

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