    [Public Papers of the Presidents of the United States: George W. Bush (2008, Book II)]
    [October 6, 2008]
    [Pages 1272-1276]
    [From the U.S. Government Publishing Office www.gpo.gov]

    Remarks to the Cincinnati Chapter of the Federalist Society in
    Cincinnati, Ohio
    October 6, 2008

        Thank you very much. Peter, thank you
    very much for the introduction and the invitation.
        Laura and I are thrilled to be with you. We
    have just come from Texas. I spent this morning in San Antonio with some
    small-business owners. They were rightly concerned about our economy and
    their ability to get credit. They were wondering about a man they know
    who believes strongly in free markets and wondering why I promoted a
    significant piece of legislation to deal with what I believe and others
    believe is a significant problem, and that is the inability of credit to
    move as freely as we want.
        And I told them, if I thought that the problem would be contained
    only to Wall Street, I would have taken a particular point of view, but
    I told them I was concerned about them--just like I'm concerned about
    you--and therefore proposed with the Congress a big rescue plan to deal
    with a big problem.
        I believe that this plan will work over time. I signed the bill on
    Friday. It's going to take time for the Treasury Department to put a
    plan in place that won't waste your money and that will achieve the
    objective.
        I believe in the long run this economy is going to be just fine.
    It's a resilient economy; it's a productive economy with good workers.
    This is a reminder that we have been through tough times before, and
    we're going to come through this just fine. And so I'm telling my fellow
    citizens, like the three people I had coffee with there in San Antonio,
    that this plan is big for a reason. And the plan is going to take time
    to implement. And I--in the meantime, I told them to keep selling their
    products and working hard.
        So I want to thank you for giving me a chance to come and talk about
    judges, but before I did so I wanted to share with you my morning. And
    I'm sure you hear the same thing; people are just wondering, are these
    banks going to freeze up? And my answer is, we got a plan to deal with
    it.
        And we got a plan to deal with judges too. It's something I've been
    implementing for 7\1/2\ years. And so today I want to thank
    Peter and Chip Miller--happens to be the president of the Cincinnati
    lawyers chapter of the mighty Federalist Society; Fred Finks, the president of Ashland University; Gene
    Meyer, the president of the Federalist
    Society, for giving me a chance to come and talk about the judiciary.
        I appreciate Ed Meese, former Attorney
    General, for joining us; Paul Clement. The
    former secretary of State of Ohio--
    thanks for coming, Mr. Secretary. And thank you all. I understand there
    are members of the Federalist Society who are viewing this program from
    afar, over the Internet. So we welcome you via the wonders of modern
    technology.

    [[Page 1273]]

        Before Oliver Wendell Holmes took his seat on the Supreme Court, he
    met a supporter who wished him well in his new duties. The supporter
    expressed satisfaction that Holmes would be going to Washington to
    administer justice. Holmes replied, ``Don't be too sure. I'm going there
    to administer the law.'' Holmes was trying to make clear what he
    believed was the proper role of judges: to apply the laws as written and
    not to advance their own agendas. He knew that it was up to elected
    officials, not appointed judges, to represent the popular will.
        Our Founders gave the judicial branch enormous power. It's the only
    branch of Government whose officers are unelected. That means judges on
    the Federal bench must exercise their power prudently, cautiously, or
    some might even say, conservatively. [Laughter] And that means that the
    selection and confirmation of good judges should be a high priority for
    every citizen.
        We've seen the profound impact that judges can have on the daily
    lives of every citizen. We saw the power of judges in 2002, when the
    Ninth Circuit Court of Appeals declared the Pledge of Allegiance
    unconstitutional because it contained the words ``under God.''
        We saw the power of judges in the Kelo decision, a 5-4 majority of
    the Supreme Court that ruled that governments could seize people's homes
    for private development. The government decided the seizure was for the
    greater good.
        We saw the power of judges in Boumediene v. Bush. There, a 5-4 majority rejected the carefully
    crafted procedures Congress established for detainees held at Guantanamo
    Bay in response to a prior Supreme Court decision. And for the first
    time, the Court awarded foreign terrorists held overseas legal rights
    previously reserved for American citizens.
        Recently we've also seen the important role of judges in the rulings
    of a very different 5-4 majority. We saw this last year, when five members of the Supreme Court upheld a law banning the grisly
    practice of partial-birth abortion. We saw it again this June, when that
    same slender majority stood up for the plain meaning of our Constitution
    and upheld the rights of citizens under the Second Amendment.
        The lesson should be clear to every American: Judges matter. And
    that means the selection of good judges should be a priority for all of
    us. I appreciate that many people listening today and here in this room
    have worked hard to recruit more Americans to this cause. This work is
    in all our interests, but the truth of the matter is, the belief in
    judicial restraint is shared by the vast majority of American citizens.
        A lot has happened since 2000, yet I can still remember the heated
    debate over the kinds of judges Presidents should appoint. One group
    said that judges ought to look at the Constitution as a document that
    grows with our country and our history. This concept of a living
    Constitution gives unelected judges wide latitude in creating new laws
    and policies without accountability to the people.
        And then there was another side, which I happened to be a part of,
    that said we needed judges who believed that the Constitution means what
    it says. When asked if I had any idea in mind of the kinds of judges I
    would appoint, I clearly remember saying, ``I do.'' That would be Judges
    Scalia and Thomas.
        Judge Scalia recently gave an interview
    on the TV show ``60 Minutes.'' I don't know if you're supposed to call
    it a TV show, kind of--[laughter]--newsworthy show. [Laughter] He talked
    about the schoolchildren who visit the Supreme Court and proudly recite
    what they had been taught about the living Constitution. Judge Scalia
    noted that he usually had the sad duty of telling the children that the
    Constitution was never alive. [Laughter] He believed, as I do and many
    in this hall believe, that the Constitution is not a living document, it
    is an enduring document, and good judges know the difference.

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        And I made a promise to the American people during the campaign that
    if I was fortunate enough to be elected, my administration would seek
    out judicial nominees who follow that philosophy. We would search from a
    diverse array of candidates and nominate those who met the highest
    standards of competence. We would not impose any litmus tests concerning
    particular issues or cases. Instead, we would seek judges who would
    faithfully interpret the Constitution and not use the courts to invent
    laws or dictate social policy. And with your support, we have kept that
    pledge. I have appointed more than one-third of all the judges now
    sitting on the Federal bench, and these men and women are jurists of the
    highest caliber, with an abiding belief in the sanctity of our
    Constitution.
        The judicial philosophy that I brought to Washington, DC, is
    demonstrated most clearly by the--some of the judges I have named to the
    bench--matter of fact, all the judges I've named to the bench.
    [Laughter] One of them is the son of an
    Italian American--schoolteachers from Trenton,
    New Jersey. He graduated from Princeton and Yale Law. He worked in
    Ronald Reagan's Justice Department, was the U.S. Attorney for New
    Jersey, and served as a distinguished circuit court judge. When I
    announced his nomination, this good man was hailed by Democrats and
    Republicans alike for his keen mind and impeccable credentials. And
    America is well served by the 110th Justice of the United States Supreme
    Court, Samuel A. Alito.
        And serving with Justice Alito on
    the High Court is the former captain of a high school football
    team who worked summers in the steel
    mill to help pay for college. He received his bachelor's degree from
    Harvard in just 3 years and was managing editor of the Harvard Law
    Review. He later clerked for William H. Rehnquist, the man he would
    replace as Chief Justice. At his confirmation hearing, this outstanding
    jurist put his philosophy this way: ``Judges are like umpires. Umpires
    don't make the rules, they apply them. It is a limited role. Nobody ever
    went to a ball game to see the umpire.'' I was very proud to nominate
    for the Supreme Court a really decent man and a man of good judgment,
    and that would be Chief Justice of the Supreme Court John Roberts.
        Chief Justice Roberts was so
    obviously well qualified that he received overwhelming support from
    Members of the Senate, including many Senators generally considered to
    be well left of center.
        Unfortunately, the broad, bipartisan, and timely support for Chief
    Justice Roberts has increasingly become
    the exception. Over the years, the advice and consent clause of our
    Constitution has been subjected to serious abuse. Members of the Senate
    seem to embrace the advice part; it's the consent part that seems to be
    the problem.
        Perhaps the best demonstration of this problem is the story of
    Miguel Estrada. Miguel was one of my first
    nominees to the courts, and he had an inspiring personal history. He was
    an immigrant from Latin America who came to the United States with
    little knowledge of English. He came to live the dream. He studied hard,
    and he worked hard, and he made his way to Columbia Law School and then
    Harvard Law School. He was a Supreme Court clerk. He prosecuted crimes
    in the U.S. attorney's office in New York, and he served in the Justice
    Department under President Bill Clinton.
        When Miguel Estrada was nominated for
    a seat on the DC Circuit Court, he received a unanimous well-qualified
    rating from the American Bar Association. Yet for more than 2 years, he
    awaited a simple up-or-down vote in the United States Senate; he never
    got one. For the first time in history, the Senate used a filibuster to
    block a nominee to the Court of Appeals. This fine American endured
    years of delay; he had his character unfairly attacked and

    [[Page 1275]]

    ultimately withdrew his name from consideration, all because a minority
    of Senators thought they would not like his rulings on the bench and
    worried that a President might one day elevate him to the Supreme Court.
        Miguel Estrada deserved better. He
    deserved a more dignified treatment from the United States Senate. And
    the American people deserve better behavior from those they send to
    represent them in Washington, DC.
        Unfortunately, Miguel Estrada's
    experience is not an isolated one. Many other well-qualified nominees
    have endured uncertainty and withering attacks on their character simply
    because they've accepted the call to public service. Those waiting in
    limbo include Peter Keisler for the DC
    Circuit Court, Rod Rosenstein for the
    Fourth Circuit, and dozens of other nominees to district and circuit
    courts across this country.
        Some of these nominees waiting for a simple up-or-down vote would
    fill court vacancies that have been designated judicial emergencies.
    While these vacancies remain unfulfilled--unfilled, legal disputes are
    left unresolved, the backlog of cases grows larger, and the rule of law
    is delayed for millions of Americans.
        The broken confirmation process has other consequences that
    Americans never see. Lawyers approached about being nominated will often
    politely decline because of the uncertainty and delay and ruthlessness
    that now characterizes the confirmation process. Some worry about the
    impact a nomination might have on their children, who would hear their
    dad or mom's name dragged through the political mud. This situation is
    unacceptable, and it's bad for our country. A judicial nomination should
    be a moment of pride for nominees and their families, not the beginning
    of an ugly battle. And the confirmation process should befit the
    greatest democracy in the world and not look like a bad episode of
    ``Survivor.'' [Laughter]
        It is clear we need to improve the process for confirming qualified
    judicial nominees. This process will always be somewhat contentious. But
    there are a few things that the American people expect us to agree on.
        First, the American people expect nominees and their families to be
    treated with dignity. Nominees should not have to wait years for the up-
    or-down vote that the Senate owes them.
        The American people expect their elected officials to do the job of
    screening judicial nominees. We should not cede to any one legal
    association the exclusive power to veto a nominee before he or she can
    make their case to Members of the Senate.
        The American people expect the nomination process to be as free of
    partisanship as possible and for Senators to rive [rise]* above tricks
    and gimmicks designed to thwart nominees. For example, Senators have
    invented a new rule that bans the election-year confirmation of anyone
    not considered a consensus nominee, with consensus defined as only the
    nominees they happen to choose. In the end, the people hurt most by
    these partisan maneuvers are the American people. And that is not what
    our Founders intended, and Presidents and Senators from both parties
    ought to say so.
    ---------------------------------------------------------------------------
        *White House correction.
    ---------------------------------------------------------------------------
        In Washington, it can be easy to get caught up in the politics of
    the moment. Yet if we do not act to improve the confirmation process,
    those who are today deploying harmful tactics and maneuvers to thwart
    nominees will sooner or later find the tables turned. There are things
    more important, even in Washington, than politics as usual.
        Next month, the Senate will hold a lame duck session to finish their
    legislative business for the year. One item that should be at the top of
    their agenda is a long list of qualified judicial nominees still waiting
    for Senate action. If Democrats truly

    [[Page 1276]]

    seek a more productive and cooperative relationship in Washington, then
    they have a perfect opportunity to prove it, by giving these nominees
    the up-or-down vote they deserve.
        Our democracy requires us to come together and to get things done
    for the citizens of this great republic. I'm confident we can do that.
    And I'm grateful that there are dedicated people like you all who are
    working so hard to help us put good judges on the courts and, equally
    important, to help invest the American people in the process.
        I salute you for your good work. Appreciate the chance to come and
    visit with you. May God bless you, and may God bless the American
    people.

    Note: The President spoke at 3:02 p.m. at the Hilton Cincinnati
    Netherland Plaza. In his remarks, he referred to Peter W. Schramm,
    executive director, Ashbrook Center for Public Affairs, Ashland
    University, who introduced the President; former U.S. Solicitor General
    Paul D. Clement; and former Ohio Secretary of State J. Kenneth
    Blackwell. He also referred to H.R. 1424, approved October 3, which was
    assigned Public Law No. 110-343. The Office of the Press Secretary also
    released a Spanish language transcript of these remarks.