[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12287-12288]
[From the U.S. Government Publishing Office, www.gpo.gov]




           IMPORTANCE OF CONSULTATION ON JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I spoke on the Senate floor last week about 
the benefits to all if the President were to consult with Members of 
the Senate from both sides of the aisle on important judicial 
nominations. I return today to emphasize again the significance of 
meaningful consultation on these nominations because it bears repeating 
given what is at stake for the Senate, the judiciary and this country.
  In a few more days the United States Supreme Court will complete its 
term. Last year the chief justice noted publicly that at the age of 80, 
one thinks about retirement. I get to see the chief from time to time 
in connection with his work for the Judicial Conference and the 
Smithsonian Institution. Sometimes we see each other in Vermont or en 
route there, and I am struck every time by his commitment. I marvel at 
him. I think that his participation at the inauguration earlier this 
year sent a powerful positive message to the country. I know that the 
chief justice will retire when he decides that he should, not before. 
He has earned that right. I have great respect and affection for him 
and he is in our prayers.
  In light of the age and health of our Supreme Court justices, 
speculation is accelerating about the potential for a Supreme Court 
vacancy this summer. In advance of any such vacancy, I have called upon 
the President to follow the constructive and successful examples set by 
previous Presidents of both parties who engaged in meaningful 
consultation with Members of the Senate before selecting a nominee. 
This decision is too important to all Americans to be unnecessarily 
embroiled in partisan politics.
  I said again last week that should a vacancy arise, I stand ready to 
work with President Bush to help him select a nominee to the Supreme 
Court who can unite Americans. I have urged consultation and 
cooperation for 4 years and have reached out, again, over the last 
several months to this President. I hope that if a vacancy does arise 
he will finally turn away from his past practices, consult with us and 
work with us.
  Some Presidents, including most recently President Clinton, found 
consultation with the Senate in advance of a nomination most beneficial 
in helping lay the foundation for successful nominations. President 
Reagan, on the other hand, disregarded the advice offered by Senate 
Democratic leaders and chose a controversial, divisive nominee who was 
ultimately rejected by the full Senate.
  In his recent book, ``Square Peg,'' Senator Hatch recounts how in 
1993, as the ranking minority member of the Senate Judiciary Committee, 
he advised President Clinton about possible Supreme Court nominees. In 
his book, Senator Hatch wrote that he warned President Clinton away 
from a nominee whose confirmation he believed ``would not be easy.'' 
Senator Hatch goes on to describe how he suggested the names of Stephen 
Breyer and Ruth Bader Ginsburg, both of whom were eventually nominated 
and confirmed ``with relative ease.'' Indeed, 96 Senators voted in 
favor of Justice Ginsburg's confirmation, and only 3 Senators voted 
against; Justice Breyer received 87 affirmative votes, and only 9 
Senators voted against.
  The Constitution provides that the President ``shall nominate, and by 
and with the Advice and Consent of the Senate, shall appoint'' judges. 
For advice to be meaningful it needs to be informed and shared among 
those providing it.
  Those recent examples are not the only examples of effective and 
meaningful consultation with the Senate. According to historians, 
almost 150 years ago, in 1869, President Grant appointed Edwin Stanton 
to the Supreme Court in response to a petition from a majority of the 
Senate and the House. More than 70 years ago, in 1932, President Hoover 
consulted with Senator William E. Borah regarding who he should 
nominate to succeed Justice Oliver Wendell Holmes. According to 
historical reports, as has been confirmed by Republican Senators, 
Senator Borah counseled the President to select Benjamin Cardozo from 
his list of potential nominees.
  Bipartisan consultation would not only make any Supreme Court 
selection a better one, it would also reassure the Senate and the 
American people that the process of selecting a Supreme Court justice 
has not become politicized.
  Recently, a bipartisan group of 14 Senators joined together to avert 
an unnecessary showdown in the Senate over the effort to invoke the 
``nuclear option.'' That would have changed 200 years of Senate 
tradition and the protection of minority rights. In their agreement the 
bipartisan coalition say the following:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.

  I agree. Bipartisan consultation is consistent with the traditions of 
the Senate and would return us to practices that have served the 
country well. They are right to urge greater consultation on judicial 
nominations.
  In that regard, I was pleased to see the President respond to a 
question at a news conference 2 weeks ago by agreeing to consult with 
the Senate about his nomination should a vacancy arise on the Supreme 
Court. I see that as a positive development. More troubling are reports 
that the White House plan does not include meaningful consultation at 
all, but a ``war room'' and some sort of preemptive contact to allow 
them to pretend they consulted without anything akin to the kind of 
meaningful consultation this important matter deserves. If the White 
House intends to follow that type of plan, it would be most 
unfortunate, unwise and counterproductive.
  Though the landscape ahead is sown with the potential for controversy 
and contention should a vacancy arise on the Supreme Court, 
confrontation is unnecessary. Consensus should be our mutual goal. I 
would hope that the President's objective will not be to send the 
Senate nominees so polarizing that their confirmations are eked out in 
narrow margins. This would come at a steep and gratuitous price that 
the entire Nation would have to pay in

[[Page 12288]]

needless division. It would serve the country better to choose a 
qualified consensus candidate who can be broadly supported by the 
public and by the Senate.
  The process begins with the President. He is the only participant in 
the process who can nominate candidates to fill Supreme Court 
vacancies. If there is a vacancy, the decisions made in the White House 
will determine whether the nominee chosen will unite the Nation or will 
divide the Nation. The power to avoid political warfare with regard to 
the Supreme Court is in the hands of the President. No one in the 
Senate is spoiling for a fight. Only one person will decide whether 
there will be a divisive or unifying process and nomination. If 
consensus is a goal, bipartisan consultation will help achieve it. I 
believe that is what the American people want and what they deserve.
  If the President chooses a Supreme Court nominee because of that 
nominee's ideology or record of activism in the hopes that he or she 
will deliver political victories, the President will have done so 
knowing that he is starting a confirmation confrontation. The Supreme 
Court should not be an arm of the Republican Party, nor should it be a 
wing of the Democratic Party. If the right-wing activists who were 
disappointed that the nuclear option was averted convince the President 
to choose a divisive nominee, they will not prevail without a difficult 
Senate battle. And if they do, what will they have wrought? The 
American people will be the losers: The legitimacy of the judiciary 
will have suffered a damaging blow from which it may not soon recover. 
Such a contest would itself confirm that the Supreme Court is just 
another setting for partisan contests and partisan outcomes. People 
will perceive the Federal courts as places in which ``the fix is in.''
  Our Constitution establishes an independent Federal judiciary to be a 
bulwark of individual liberty against incursions or expansions of power 
by the political branches. That independence is at grave risk when a 
President seeks to pack the courts with activists from either side of 
the political spectrum. Even if successful, such an effort would lead 
to decision-making based on politics and forever diminish public 
confidence in our justice system.
  The American people will cheer if the President chooses someone who 
unifies the Nation. This is not the time and a vacancy on this Supreme 
Court is not the setting in which to accentuate the political and 
ideological division within our country. In our lifetimes, there has 
never been a greater need for a unifying pick for the Supreme Court. At 
a time when too many partisans seem fixated on devising strategies to 
force the Senate to confirm the most extreme candidate with the least 
number of votes possible, I have been urging cooperation and 
consultation to bring the country together. There is no more important 
opportunity than this to lead the Nation in a direction of cooperation 
and unity.
  The independence of the Federal judiciary is critical to our American 
concept of justice for all. We all want Justices who exhibit the kind 
of fidelity to the law that we all respect. We want them to have a 
strong commitment to our shared constitutional values of individual 
liberties and equal protection. We expect them to have had a 
demonstrated record of commitment to equal rights. There are many 
conservatives who can meet these criteria and who are not rigid 
ideologues.
  This is a difficult time for our country and we face many challenges. 
Providing adequate health care for all Americans, improving the 
economic prospects of Americans, defending against threats, the 
proliferation of nuclear weapons, the continuing upheaval and American 
military presence in Iraq, are all fundamental matters on which we need 
to improve. It is my hope that we can work together on many issues 
important to the American people, including maintaining a fair and 
independent judiciary. I am confident that a smooth nomination and 
confirmation process can be developed on a bipartisan basis if we work 
together. The American people we represent and serve are entitled to no 
less.

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