[Congressional Record (Bound Edition), Volume 151 (2005), Part 12]
[Senate]
[Pages 16364-16365]
[From the U.S. Government Publishing Office, www.gpo.gov]




             CONSULTATION ON A NOMINEE TO THE SUPREME COURT

  Mr. KENNEDY. Mr. President, it has now been 1 week since the 
President met with Senate leadership and the chairman and and ranking 
Democrat of the Senate Judiciary Committee to discuss the nomination of 
a successor for Supreme Court Justice Sandra Day O'Connor.
  All of us were saddened by Justice O'Connor's resignation. She served 
this Nation with great dedication for over 2 decades. She embodied the 
principles of fairness and reasoned judgment, and had a sincere 
appreciation for the effect of the Court's decisions on the everyday 
lives of all American people. Her dedication continues in her pledge to 
remain in office as long as it is necessary for her replacement to be 
confirmed, so that the Court will not have a vacancy while the task of 
selecting a new Justice is carried out. All of us regret Justice 
O'Connor's departure, but we are grateful for her service to the 
Nation, and we wish her well in what I am sure will be an active 
retirement.
  I hope that the President will choose a consensus nominee, who can 
bring the Nation together, as Justice O'Connor herself did, rather than 
further divide us. As President Bush and the Senate prepare to begin 
the process of confirming Justice O'Connor's successor, consultation 
between the President and the Senate has an important role.
  I was encouraged when the President met with the leaders of both 
parties in the Senate and on the Judiciary Committee a week ago. I am 
also encouraged that the President has contacted a number of other 
Senators of both parties to hear their views. This was an important 
first step. But the sign of whether there has been a meaningful 
consultation is not simply the process, but the result. In the past, 
real consultation has led to consensus nominees, who could be easily 
confirmed with the support of a large bipartisan majority of the Senate 
and the confidence of the American people.
  To reach that result, consultation must be more than a one-way 
street. No one is suggesting that Senators co-nominate candidates for 
the Supreme Court. But for Members of the Senate to provide advice to 
the President, there must be a real discussion and a two-way 
conversation about specific candidates.
  It is a fundamental part of our system of checks and balances that 
the power to appoint judges, especially Justices of the Supreme Court, 
is shared by the President and Senators from all fifty States, so that 
the Nation's diverse interests can be represented in this important 
choice.
  The Founders believed that the whole Senate and the President 
together would do the best job of confirming independent Supreme Court 
justices, who would be above politics, and not beholden to any 
politician or political party. They wanted an independent, impartial 
Supreme Court that would give everyone a fair hearing, rather than 
favoring powerful corporations or special interests with political 
clout.
  In the early 1990s, as Senator Hatch recounts in his book, President 
Clinton consulted with Senator Hatch--then the ranking Republican 
Senator on the Judiciary Committee--sharing the names of candidates he 
was considering for the Supreme Court. President Clinton asked Senator 
Hatch's opinion, even though Republicans were then in the minority in 
the Senate. Senator Hatch recommended Stephen Breyer and Ruth Bader 
Ginsburg. President Clinton agreed that these were excellent choices, 
and nominated Justice Ginsburg in 1993 and Justice Breyer in 1994. Both 
were easily confirmed.
  If the President takes seriously the advice of Senators from both 
parties on the persons he is considering, the result will be a 
distinguished nominee who is acceptable to the vast majority of the 
American people, and who will easily be confirmed. That was the case 
when Ronald Reagan nominated Justice O'Connor, a mainstream Republican, 
to the Court, and I am optimistic that this will be the case with her 
successor. I hope the Senate and the White House can set aside 
partisanship, to ensure that the best possible person is nominated and 
confirmed to the Court.
  Consultation is about more than process. It is about an outcome, and 
a consensus nominee is the best outcome for the Nation.
  The importance of a consensus nominee is clear when we consider all 
of the vital issues decided by the Supreme Court, issues with enormous 
impact on Americans and their daily lives.
  A Supreme Court nomination matters to all Americans. It is not just 
about a few hotly debated social issues. It is of great importance to 
every man, woman and child in America because the decisions of the 
Court affect their lives every day.
  The Court's decisions affect whether employees' rights will be 
protected in the workplace. They affect whether families will be able 
to obtain needed medical care under their health insurance policies. 
They affect whether people will actually receive the retirement

[[Page 16365]]

benefits that they were promised. They affect whether people will be 
free from discrimination in their daily lives. They affect whether 
students will be given fair consideration when they apply to college. 
They affect whether persons with disabilities will have access to 
public facilities and programs. They affect whether we will have 
responsible environmental laws that keep our air and water clean. They 
affect whether large corporations are held accountable when they injure 
workers and consumers.
  The list goes on and on. Each of these issues has been addressed by 
the Supreme Court in recent years. In many of those cases, the Court 
was narrowly divided, and each of these areas is likely to be the 
subject of future Court decisions in the years to come.
  According to a recent article in the Washington Post, entitled 
``Business Pushes Its Own Brand of Justice,'' major corporations are 
ready to ``bankroll large-scale efforts to promote the President's 
choice'' if he nominates a candidate who will side with big business 
against workers, consumers and environmentalists. Eighteen million 
dollars has already been raised--much of it from these corporate 
interests, and that amount is only the first installment of what they 
are willing to spend to influence the direction of the Court. In recent 
years, approximately 40 percent of the Supreme Court's docket has been 
cases involving economic issues, and that pattern is likely to continue 
in coming years. So it is essential that the new justice be someone who 
will hear these cases with an open mind, not someone who is biased in 
favor of corporate wealth and power.
  The outcome of such cases will obviously affect the wellbeing of all 
Americans. The Nation is facing major economic challenges today. In the 
last 4 years, we have lost 2.8 million manufacturing jobs. Long-term 
unemployment has nearly doubled. Outsourcing threatens to export 
millions more American jobs. Workers are losing health insurance and 
pension benefits at an alarming rate.
  Those in the elected branches of our government have a responsibility 
to deal with these economic challenges--to develop innovative policies 
that will provide greater economic security for workers and their 
families--just as they did in earlier periods of economic difficulty. 
Those appointed to the Federal Courts--and particularly to the Supreme 
Court--must respect the role of the elected branches in addressing 
these urgent economic challenges. America cannot afford justices who 
would turn back the clock to the Lochner era, and impose an extreme, 
discredited 19th century ideology on our Nation's 21st century economy.
  That the Supreme Court plays such a major role in our national life 
is not new. When Alexis de Toqueville described America in the early 
years of the 19th century, he noted that:

     scarcely any political question arises in the United States 
     that is not resolved, sooner or later, into a judicial 
     question.

  That fact has been true throughout our history. We are a nation of 
laws. That is why it is so important for the President to nominate 
Justices with mainstream views who respect the national values of our 
Constitution, not ideological extremists who seek to impose their 
personal philosophy on the American people.
  I sincerely hope that President Bush will nominate a justice whose 
views are in the national mainstream on these important issues, not one 
who sees the role of the judiciary as the defender of entrenched 
economic interests. The American people will be watching us closely, 
and they expect us to live up to our oath of office to defend the 
Constitution and its great promise of equal protection of the laws for 
all our people.

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