[Weekly Compilation of Presidential Documents Volume 44, Number 40 (Monday, October 13, 2008)]
[Pages 1303-1306]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
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.
    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

[[Page 1304]]

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.
    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

[[Page 1305]]

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 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

[[Page 1306]]

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 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 secretary of State J. Kenneth Blackwell of 
Ohio. 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.