[Congressional Record (Bound Edition), Volume 151 (2005), Part 12]
[Senate]
[Pages 16230-16234]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       INDEPENDENT SUPREME COURT

  Mr. BAUCUS. Mr. President, in the Declaration of Independence, one 
reason our Founders decided for a revolution against King George was 
``He has made judges dependent on his will alone.''
  That same year, the Delaware Declaration of Rights and Fundamental 
Rules stated:

       That the independence and uprightness of judges are 
     essential to the impartial administration of justice, and a 
     great security to the rights and liberties of the people.

  In the Federalist Papers, explaining our great Constitution, 
Alexander Hamilton quoted Montesquieu to say:

       There is no liberty, if the power of judging be not 
     separated from the legislative and executive powers.

  It is the independence of the Supreme Court that is at stake in the 
coming consideration of the Court's next nominee. Our Constitution 
embodies that independence of the Court in its separation of powers, in 
its checks and balances, and in its structure that provides of the 
President:

       He shall nominate, and by and with the advice and consent 
     of the Senate, shall appoint . . . judges of the Supreme 
     Court.

  The Senate's active advice and consent role in the confirmation of a 
Supreme Court Justice helps to ensure

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that nominees have the support of a broad political consensus. The 
Senate's role helps to ensure that the President cannot appoint extreme 
nominees. The Senate's role helps to ensure that Justices are more 
independent from the President.
  Time and time again the history of our Supreme Court has demonstrated 
the importance of that independence. Time and time again, it has 
mattered that the Supreme Court had brave men and brave women who were 
willing to rule against the interests of the President. Time and time 
again, it has mattered that the President had to appoint independent 
thinkers that would withstand the tough scrutiny of the Senate.
  It mattered that we had an independent court when our Nation was 
young, in 1803, when the Supreme Court decided the case of Marbury v. 
Madison. It mattered that we had an independent court so that Chief 
Justice Marshall could write for the Court:

       It is emphatically the province and duty of the judicial 
     department [that is the judiciary] to say what the law is. . 
     . . If two laws conflict with each other, the courts must 
     decide on the operation of each. . . . That is the very 
     essence of judicial duty.

  Today, most take for granted this bedrock principle of judicial 
review set forth in Marbury v. Madison. But recall the plaintiff in 
that case, William Marbury, challenged President Thomas Jefferson's 
administration. If the President, Thomas Jefferson, had been able to 
appoint Justices without an effective check by the Senate, then perhaps 
the President would have been able to appoint Justices who believed as 
he did--as Jefferson did--when he wrote, in 1820, a letter saying:

       It is a very dangerous doctrine to consider the judges as 
     ultimate arbiters of all constitutional questions.

  Just think for a second what that means. President Thomas Jefferson, 
back in 1820, wrote that it was unfortunate and dangerous doctrine to 
consider judges as the ultimate arbiters of constitutional questions. 
If it wasn't he, who would it be? Clearly, Thomas Jefferson thought it 
would be he, the President, not the Supreme Court.
  Without concern for the Senate's advice and consent, a more recent 
President might have appointed a Justice who believed as did former 
Attorney General Edwin Meese, 20 years ago, when Meese argued that the 
Supreme Court's interpretations of the Constitution, in his words, did 
not establish a ``supreme law of the land.'' That is Edwin Meese, who 
was U.S. Attorney General 20 years ago. And recall that Attorney 
General Meese asserted that the Reagan administration was free to rely 
on its own views on the meaning of the law.
  That is revolutionary, and I don't use that word unadvisedly. It is a 
long-established principle that the Constitution is what the Supreme 
Court says it is. It has to be. The Constitution is not what the 
President says it is, it is what the Supreme Court says it is. The 
judiciary is a free, independent, third branch of Government.
  It also mattered that we had an independent Supreme Court in 1952, 
when the Court decided Youngstown Sheet & Tube Company v. Sawyer, 
otherwise known as the ``steel seizure case.''
  It was the time of the Korean War, and we faced a steel strike. 
President Truman tried to seize the steel companies in order to avert a 
strike. It mattered that we had an independent Supreme Court so that 
the Court could rule against President Truman--an independent arbiter 
saying: No, Mr. President, that is not proper; the Constitution doesn't 
permit that.
  It mattered that Justice Hugo Black was independent enough to write 
for the majority when he wrote:

       The Constitution limits his [that is, the President's] 
     functions in the lawmaking process to the recommending of 
     laws he thinks wise and the vetoing of laws he thinks bad. 
     And the Constitution is neither silent nor equivocal about 
     who shall make laws which the President is to execute.

  That is very clear. The Supreme Court stood up to the President and 
said, Mr. President, that is unconstitutional.
  It mattered that we had an independent Supreme Court in 1974, when 
the Court heard U.S. v. Nixon, otherwise known as the Watergate tapes 
case. Let's go back and review those facts.
  President Nixon fought against Special Prosecutor Leon Jaworski's 
subpoena to get the Watergate tapes. It mattered that we had an 
independent Supreme Court, so that the Court could rule against 
President Nixon's claim of executive privilege. The President thought 
he had that privilege. If he had his way, he would determine the rule 
of law in the United States. But, no, we had an independent third 
branch, the Supreme Court, which ruled that the President in his 
interpretation of the Constitution was incorrect. In effect, the 
Constitution was standing up for all of us as Americans, protecting our 
rights against Presidents who want to have their way, which Presidents 
want to do after they are in power after several years.
  It mattered that Chief Justice Warren Burger was independent enough 
to write for the majority in that case:

       Neither the doctrine of the separation of powers, nor the 
     need for confidentiality of high level communications, 
     without more, can sustain an absolute, unqualified 
     Presidential privilege of immunity from judicial process 
     under all circumstances.

  That, in effect, is what President Nixon was asking for. The Supreme 
Court stood up for our rights against a President.
  Earlier, in 1969, on appointing Justice Burger as Chief Justice of 
the Supreme Court, President Nixon had said:

       Our Chief Justices have probably had more profound and 
     lasting influence on their times and on the direction of the 
     Nation than most Presidents.

  Well, in the time of President Nixon, it certainly mattered that we 
had an independent Supreme Court.
  It mattered that we had an independent Supreme Court in 1963. In that 
year, the Supreme Court decided Gideon v. Wainwright, which upheld the 
right of counsel in State courts for people who could not afford a 
lawyer. A President might not want lawyers questioning the Government's 
prosecutors. Most Presidents don't. It mattered that an independent 
Supreme Court ensured that they can.
  It mattered that we had an independent Supreme Court in 1964, when 
that Court decided New York Times v. Sullivan. That case has a standard 
that public officials, including Presidents, would have to meet to sue 
those who criticize them for the conduct of their office.
  It mattered that we had an independent Supreme Court so that the 
Court could establish a rule against the interest of public officials, 
something public officials don't like. That is a standard that we don't 
like in this body. We don't particularly like it, but people can use 
it. It is the right decision. It makes it uncomfortable at times. The 
Court could rule that the first amendment protects the publication of 
statements about public officials, except when made with actual 
malice--that is, with knowledge that they are false or in reckless 
disregard of whether or not they are false. That was an independent 
Supreme Court. So it mattered that Justice William Brennan was 
independent enough to write the majority in that opinion, and he said:

       We hold today that the Constitution delimits a State's 
     power to award damages for libel in actions brought by public 
     officials against critics of their official contact.

  I imagine most Presidents don't like that if the Supreme Court says 
it is necessary in interpreting the Constitution to protect American 
rights.
  It mattered when we had an independent Supreme Court in 1954 when the 
Court decided Brown v. Board of Education. A Court that was dependent 
on the President might have wanted to skirt that issue of segregation, 
to duck the injustice of racial segregation in our schools.
  Why do I say that? Because Jim Newton, a Los Angeles Times editor and 
biographer of Chief Justice Earl Warren, has written that President 
Eisenhower, who appointed Chief Justice Warren, tried to influence the 
Chief Justice on that landmark case. Newton reports that during the 
period when the Court was considering Brown v. Board of Education, 
President Eisenhower invited Chief Justice Warren to join him at dinner 
with a number of guests. That was while that case was pending.

[[Page 16232]]

  It turned out that President Eisenhower had also invited one of the 
lawyers for the Southern States in the Brown case.
  As the President and Chief Justice stood up from the table--this was 
dinner, remember, with one of the lawyers for the Southern States 
there, a private dinner, Chief Justice Warren was there, and President 
Eisenhower, who appointed Chief Justice Warren, was there--as they 
stood up from the table, the President took the Chief Justice by the 
arm. The President motioned to others in the room and then whispered 
into the Chief Justice's ear: ``These are not bad people.''
  The President told the Chief Justice that they were only concerned 
about their ``sweet little girls'' having to sit in school beside 
African-American children.
  That is what President Eisenhower said at that dinner to Chief 
Justice Warren when Brown v. Board of Education was pending. So it 
mattered that we had a Chief Justice who was independent enough not to 
listen to the President who appointed him.
  It mattered that Chief Justice Warren was independent enough to write 
for the majority:

       We conclude that in the field of public education the 
     doctrine of ``separate but equal'' has no place. Separate 
     educational facilities are inherently unequal.

  On that point, I don't know if it is true or not, but there are many 
scholars who say that the current Chief Justice wrote a memo to his 
judge he was working with when he was a clerk advocating separate but 
equal. That memo did not come out until after the Chief Justice was 
appointed and confirmed by the Senate.
  We here today can be justifiably proud that America has the oldest 
living written Constitution. When our Nation's Government was born, our 
Constitution was a novelty. Our Constitution created, in the words 
engraved over the west doorway of this Chamber, ``novus ordo 
seclorum''--``a new order of ages.''
  As we examine the great variety of governments in the world today, 
Americans can still have pride that few nations possess such a charter. 
Few nations fervently protect their rights--very few, when you stop to 
think about it. It is astounding, it is amazing, and we do take it for 
granted. Few nations so preserve an independent supreme court.
  Our Constitution is our foundation. It sets forth our basic rights. 
It preserves our liberties against the eternal danger of the power of 
the Executive, sometimes against the power of the Congress but many 
times against the power of the Executive.
  Our Constitution preserves precious rights that must be protected, 
and that is why we must act zealously to ensure that the men and women 
we entrust to guard that valued heritage is truly independent. That is 
why we must remember, as Justice Charles Evans Hughes said in 1907:

       [T]he judiciary is the safeguard of our liberty and of our 
     property under the Constitution.

  Our Constitution helps to preserve those rights through an ingenious 
system of checks and balances. Time and time again, our Constitution 
sets up structures that require two separate, coequal branches of 
Government to work together and agree before the Government can act. 
These structures were deeply rooted in the spirit of the times, back 
when the Constitution was written, that when two work together, one 
would propose and the other could veto.
  You can see that spirit in the original clause where the House can 
propose revenue measures, but the Senate can amend them. You can see 
that spirit in the presentation clause where the Congress can propose 
legislation but the President can veto it. And you can see that spirit 
in the nomination clause where the President can nominate judges but 
the Senate can block them. That was the ingenious development in the 
late 1700s to forge consensus; somebody can propose but the other can 
oppose. It forces cooperation, it forces consensus, it forces a better 
government.
  Thus, when the Senate decides whether to confirm a Supreme Court 
nominee, it is not beholden to the concerns of the President but to the 
deepest concerns and needs of the people. This is particularly true 
given lifetime tenure of a Supreme Court Justice and the need for 
Justices to staunchly defend the people's rights and liberties.
  My colleagues should recall that in the history of our Supreme Court, 
13 Justices have served for more than 30 years. Justice Douglas served 
on the Court for more than 36 years, and the Justices appointed since 
1970 have served for an average of 25 years. That is a long time. 
Therefore, it matters that we get good judges. It really matters.
  Over the years, this has been one of the issues of greatest 
importance to me as a Senator, and that is why I worked to set up a 
merit selection system in my State of Montana that is truly apolitical, 
truly independent, to select the judges for whom I would then recommend 
to the bench.
  It is very important to me. I said to the people helping me out: I 
don't care if they are Republicans or Democrats. I don't care if you 
recommend liberals or conservatives. You just give me the names of 
three of the very best people in our State who can then serve on the 
Federal bench because they are going to be there a long time, and they 
are so important.
  I am very proud--twice this happened, and each time the group I put 
together, which was totally balanced, came up with three very good 
names. It was difficult for me in sitting down with each of the three 
to decide who was the best of the three because they were all so good. 
I did the best I could, and I felt the process worked out very well and 
was of great value to the people of Montana and to the country.
  So it matters that we have an independent judiciary. To ensure we 
have an independent judiciary, it thus matters that Senators exercise 
their independent judgment in the nomination process. Senators should 
not act as rubberstamps for the President's choice. That would be a 
complete abrogation of senatorial responsibility--complete, total.
  It is our Founders' dream of an independent Supreme Court, helping to 
exercise the Constitution's intricate systems of checks and balances, 
that is at stake in this nomination process. The Senate's active 
involvement in the confirmation of Justices helps to ensure that the 
Supreme Court can lead that independent branch of Government. And in 
case after case, that independence of the Supreme Court, in turn, has 
ensured our personal rights and our liberties. We cannot take that for 
granted.
  The Senate can honor that independence by taking its constitutional 
responsibility to advise and consent very seriously. The Senate can 
honor that independence by withholding judgment on a nominee until the 
Judiciary Committee has conducted full and fair hearings. And the 
President can honor that independence by putting forth a nominee who 
meets three basic criteria: professional competence, personal 
integrity, and a view of important issues that is within the mainstream 
of the contemporary judicial thought. And the Senate can honor the 
independence of the Supreme Court by holding a nominee to each of these 
criteria before voting on whether to confirm.
  Let me review those three criteria.
  First, professional competency: The Supreme Court must not be the 
testing ground for the development of a jurist's basic values. He 
cannot learn on the job, nor should a Justice require further training. 
The stakes are simply too high. He must be very professionally 
competent on day one.
  Second, personal integrity: Nominees to our Nation's highest Court 
must be of the highest caliber.
  And, third, the nominee should fall within the mainstream of 
contemporary judicial thought. The next Justice must possess the 
requisite judicial philosophy to be entrusted with the Court's sweeping 
constitutional powers.
  A Senator should not oppose a nominee just because a nominee does not 
share that Senator's particular judicial philosophy. But the Senate 
must determine whether a nominee is within the

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broad mainstream of judicial thought--not an idealogue of the far left, 
not an idealogue of the far right but mainstream.
  Why? Because that is where America is. Also, we need a Judge who can 
exercise good judgment during the entire time he or she is on the 
Court. The average tenure since 1970 is 25 years. Times have changed. 
We don't want an idealogue who has one view or tends to have one view 
but, rather, somebody who is wise, above the fray, has perspective, 
listens, has good judgment, deeply understands the history of our 
country, especially its beginnings when our Constitution was written.
  The Senate must determine whether a nominee is committed to the 
protection of the basic constitutional values of the American people.
  So what are some of those values? One is the separation of powers of 
our Federal Government, including the independence of the Court itself.
  Another is freedom of speech. Boy, is that important, stronger in 
this country than any other on the face of this Earth. It is so 
important--so important. It helps make America what it is.
  Another is freedom of religion, the other side of the establishment 
clause. Freedom of religion, both direct and indirect, so people are 
free to worship whomever they choose and in whatever manner they wish.
  Equal opportunity, enshrined in the 14th amendment, is the basic 
bedrock American principle. Again, this is what made this country 
great. We are great for a lot of reasons, but one is because people 
want to come to this country and live. We don't see very many Americans 
heading for the door to get out of America. Americans want to stay in 
America, and other people want to come to America. Why is that? I 
submit largely it is opportunity, it is the freedom of opportunity, and 
no discrimination. Anybody who wants to make something out of himself 
or herself in America can. There are some practical limitations 
sometimes, but by and large, if you have the stuff in America, you are 
going to get there. It is freedom of opportunity.
  Another value is personal autonomy, the right to be left alone. That 
is very basic in America when we talk about freedoms in America. They 
are so important. Another freedom is the right to be left alone.
  Another is an understanding of the basic powers of the Congress to 
pass important laws, such as those providing for the protection of the 
environment. We are one country. General laws, especially under the 
commerce clause, are so important so that all of America can share in 
matters, not just the equal protection clause, but the commerce clause, 
sharing and protecting the environment. It is very important. We are 
one country. That is becoming more and more important each passing day.
  Why? Because of integration and large advances in communication 
technologies, all kinds of technologies. We are all so much of the same 
country together.
  Mainstream philosophy matters because some on the extreme would 
argue, as Justice Thomas did last month, that the Constitution's 
establishment clause in the Bill of Rights does not even apply to the 
States. Think of that for a moment. Justice Thomas said the 
Constitution's establishment clause in the Bill of Rights--that is the 
first amendment--does not even apply to the States.
  What does that mean? That means States can set up their own laws 
respecting the establishment of religion. I thought we were one 
country. I thought that issue was decided long ago. I thought most of 
the provisions of the Bill of Rights that applied to the Federal 
Government also applied to States. I thought that. I thought we were 
American.
  To even contemplate the thought of going backward, to even 
contemplate the thought that the establishment clause does not apply to 
States in and of itself sends shivers, I am sure, down the spines of 
virtually every American, let alone to advocate it as Justice Thomas 
has, and my recollection is not once but I think twice.
  Mainstream philosophy matters because some on the extreme would seek 
to abolish the right to privacy that the Court recognized 40 years ago 
in that famous case of Griswold v. Connecticut. There is an inherent 
right to privacy in the Constitution.
  Mainstream philosophy matters because some on the extreme would argue 
that the Congress cannot pass laws such as the Endangered Species Act 
or the Clean Water Act pursuant to the Constitution's commerce clause. 
They say the commerce clause prevents the Clean Water Act; the commerce 
clause prevents Congress from passing the Endangered Species Act. Think 
for a moment what that means and how far that could go.
  Many of us are concerned that this Court is a couple or three steps 
away from if not virtually eliminating the commerce clause and 
therefore Congress's ability to enact statutes, but going so far in 
that direction it is going to create havoc in this country. We will 
have more States doing separate sets of statutes because the commerce 
clause does not apply.
  Now, come on. Stop and think a second. That is revolutionary. Yet 
there are many who advocate that in this country, I am sure hoping the 
President appoints a nominee with just that view. I will bet dollars to 
donuts there are many pushing that view upon the President right now.
  These are extreme views. They are not mainstream. And the stakes are 
high. The Senate has a duty to ensure that the nominee will defend 
America's mainstream constitutional values. We have that duty. It is 
our responsibility as Senators.
  It is only fitting that the Senate set a very high standard. It is 
only fitting that the Senate distinguish Supreme Court nominations from 
other nominations, especially those for administrative positions. 
Administrative positions, that is the President's team, in deference to 
the President having his own people. We are not talking about the 
judicial branch. There is no deference to have your own people because 
we have established we want independent people. We want one's own 
people. We do not want the President's own people. We do not want the 
Congress's own people. We want independent people who are in and of 
themselves their own people.
  It is so important the Senate act with very high standards. Because 
of the importance of an independent Supreme Court, the President is not 
entitled to have the Senate confirm his nominee. There is no 
entitlement there.
  With some sadness, I have noted over the last several years that that 
trend is developing. It is becoming almost assumed that the Senate must 
confirm the President's nominee, that the President has that right. 
There is no right. The right is for the American people to stand up 
under the Constitution and do what is right for their people. And, yes, 
support a nominee who is truly independent, has personal integrity and 
is competent but, no, not support a nominee for the Supreme Court who 
does not have those requisite criteria. That is what is right. The 
Senate must set a very high standard.
  The next Supreme Court Justice will affect all of us and our 
children. This Justice will exercise extraordinary power. We must 
ensure that Justice's independence.
  The independence of the Supreme Court is a doctrine with deep roots 
in the history of our Nation. In 1765, the great British legal jurist, 
Sir William Blackstone, published his Commentaries, a book that was 
well read by our Founders. Every law student in America knows about 
Blackstone. Blackstone wrote:

       In this distinct and separate existence of the judicial 
     power, in a . . . body of men, nominated indeed, but not 
     removable at pleasure, by the crown, consists one main 
     preservative of public liberty; which cannot subsist long in 
     any state, unless the administration of common justice be in 
     some degree separated both from the legislative and also from 
     the executive power.

  In explaining our newly minted Constitution, Alexander Hamilton wrote 
in Federalist No. 78:

       [T]he judiciary is beyond comparison the weakest of the 
     three departments of power. . . . [T]hough individual 
     oppression may now and then proceed from the courts of 
     justice, the general liberty of the people can never be

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     endangered from that quarter; I mean so long as the judiciary 
     remains truly distinct from both the legislature and the 
     Executive. For I agree, that ``there is no liberty, if the 
     power of judging be not separated from the legislative and 
     executive powers.''

  That says we in Congress cannot have our people on the Court. It also 
says the President cannot have his person on the Court. Rather a 
process so that the judge is his person on the Court, his own person.
  Hamilton continued:

       [L]iberty can have nothing to fear from the judiciary 
     alone, but would have everything to fear from its union with 
     either of the other departments. . . .

  That is pretty profound. And Hamilton warned:

       [F]rom the natural feebleness of the judiciary, it is in 
     continual jeopardy of being overpowered, awed, or influenced 
     by its co-ordinate branches. . . .

  Marbury v. Madison years later helped establish the independence of 
the judiciary, saying the Constitution is what the Court says it says, 
and that has helped. But we all know Presidents have tried to change 
the Court in their own ways because they did not like what the Court 
was doing. FDR tried his court-packing plan. He did not like what the 
Supreme Court was deciding so he tried to influence the Court with 
court packing, and that did not work. Presidents have all kinds of ways 
to influence the Court. As I mentioned earlier, President Eisenhower 
very much tried to influence Justice Warren in Brown v. Board of 
Education. Fortunately, Justice Warren, who was appointed by President 
Eisenhower, stood up and said, no, separate but equal is not the law of 
the land. Rather, we should integrate.
  Hamilton then concluded:

       The complete independence of the courts of justice is 
     peculiarly essential in a limited Constitution. By a limited 
     Constitution, I understand one which contains certain 
     specified exceptions to the legislative authority; such, for 
     instance, as that it shall pass no bills of attainder, no ex-
     post-facto laws, and the like. Limitations of this kind can 
     be preserved in practice no other way than through the medium 
     of courts of justice, whose duty it must be to declare all 
     acts contrary to the manifest tenor of the Constitution void. 
     Without this, all the reservations of particular rights or 
     privileges would amount to nothing.

  So I call on the President, I call on my colleagues to defend that 
``main preservative of . . . liberty.'' I call on the President, I call 
on my colleagues to defend the independence of the courts. I call on my 
colleagues in this Senate to actively exercise their constitutional 
duties of advice and consent.
  There are not many times in our lives as Senators when rising up and 
exercising our responsibilities is as important as this, not be a 
rubberstamp, but not vote no just because we have a different view of 
that person's judicial philosophy but, rather, doing the right thing, 
and the right thing is to make sure we have nominees of utmost personal 
integrity who are clearly professionally competent and who are in the 
mainstream and will not cater to extreme views of either the right or 
the left but stand above it all and decide cases in the right way.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. 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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