Importance Of Consultation On Judicial Nominations
IMPORTANCE OF CONSULTATION ON JUDICIAL NOMINATIONS -- (Senate - June 13, 2005)
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 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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