ENERGY POLICY ACT OF 2005 -- (Senate - June 23, 2005)
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SUPREME COURT VACANCY
Mr. KENNEDY. Mr. President, as we all know, a major debate may soon be underway in the Senate and the country if there is a vacancy on the Supreme Court. It is clear that the Bush administration is well along in choosing its nominee for the vacancy, and the Senate must be well-prepared as well.
The initial major question is whether, for the highest judicial position in the land, President Bush will choose consultation and consensus or confrontation and conflict. I urge the President not to cede this important constitutional responsibility to a narrow faction of his own party--and to groups so extreme they have called for the impeachment of six of the current nine Justices because those Justices refuse to make the law in accord with the groups' wishes.
In the landmark May 23rd agreement, the bipartisan group of 14 Senators spoke clearly for this body on two vital points. First, we intend to remain the world's greatest deliberative body, where the rules, not raw power, prevail, and where the rights of the minority are respected--not silenced. Second, the agreement sent a strong reminder to the President that the Constitution requires him to obtain both the advice and consent of the Senate before appointing judges, and that we expect him to do so in good faith.
When the Framers of the Constitution adopted our system of checks and balances 218 years ago, they focused intently on the process for selecting judges. They wanted judges to be independent, so they gave them lifetime positions and prohibited any reduction in their compensation.
Initially, they were so concerned that Presidents might abuse the power to select judges that they gave the Senate the sole power to appoint Federal judges. But some delegates argued for a Presidential role, and they debated the issue at length.
Benjamin Franklin, always ready with new ideas, pointed to the Scottish system, where the lawyers themselves selected the judges. Invariably, he said, the best and smartest candidates were selected as judges, because the other lawyers wanted to remove their toughest competitor and divide his business among themselves.
In fact, in three separate votes in July 1787, the Framers refused to give the Executive any role in judicial selection, because they did not believe the President could be trusted with that responsibility. They again placed the entire appointment power in the Senate.
Later, as the Constitutional Convention was ending in September, they agreed to a compromise, based on the procedure that Massachusetts had used successfully for over a century. To get the best possible judges, the President and the Senate would have to agree on appointments to the Federal courts. The President was powerless to appoint judges without considering the Senate's advice and obtaining its consent.
For over two centuries that system has worked well. At the Supreme Court level, Presidents have nominated 154 Justices. Most of them were confirmed by the Senate, but some 20 percent were not. Some could not get Senate consent because the Senate did not feel they were qualified for the job, some because they were selected for reasons of politics or ideology with which the Senate did not agree, and some because they were perceived as being too close to the President to be independent.
A few of us who have been here in the Senate for all of the confirmations of the current nine Justices know that most of them were consensus choices. Seven of them--including all six whom the right-wing wants to impeach--were confirmed with such strong bipartisan support that no more than nine Senators voted against them, and, of those, four received unanimous Senate support.
We learned many things from past debates. One of the most important is that there are large reservoirs of excellent potential nominees among the many capable judges and lawyers in the United States, and that, if they are chosen for the High Court, they will receive overwhelming support in the country and in the Senate. Presidents who have listened to the Senate's advice and selected such candidates have had no problem obtaining Senate consent. President Bush can do that, too. If he takes our bipartisan advice, he will have no trouble obtaining our bipartisan consent.
Presidents who have had the most trouble with the confirmation process are those who listened to erroneous advice about the process. As recently as this week, a Member of this body argued in print that:
Senate practice and even the Constitution contemplate deference to the President and a presumption in favor of confirmation.
That's not what the Constitution says. Since the days of George Washington--whose nomination of a Justice was denied consent by the Senate of that day, there has been no ``presumption in favor of confirmation'' of lifetime judicial appointees. In general, many of us do give some deference to a President's nominees to the executive branch, since they are not lifetime appointments. But even there, if the President overreaches, we act to fulfill our constitutional responsibility.
Three times in my experience, Presidents have pushed the Senate too far on Supreme Court nominations, and the Senate has said ``no.'' Each time, the White House argued for Senate deference and the Senate, each time with bipartisan support, refused to defer. Two of those rejections were consecutive nominations for the same vacancy, with members of the President's own party providing the majority for rejection each time. In the second of those two, the selection was so plainly an arrogant affront to the Senate, that the best argument the proponents could make was that mediocrity deserved representation, too, on the High Court, a proposition the Senate soundly rejected.
Clearly, Senators should not support a nominee just because a President of their party proposed the nomination. The Framers relied on each of us to make independent and individual judgments about the President's nominees. We do not fulfill our constitutional trust if we merely ``placate-the-President.'' I have seen repeated examples of Senatorial courage when numerous members of the President's party--even members of his leadership team--have refused to go along with plainly inappropriate Presidential selections.
We should do exactly what the Framers intended us to do--be joint and co-equal defenders of the rule of law and the fairness and quality and independence of the Federal courts. We must listen to their voices now, summoning us across the centuries, to uphold that basic ideal, with full devotion to our role in the checks and balances that have served the Nation so well. We fail them if we march in lockstep with the White House.
As past experience shows, nominees selected for their devotion to a particular ideological agenda are likely to have the most difficulty being confirmed, because that kind of choice rarely achieves a consensus. History shows plainly that the better course is to search for the highest quality candidates who have demonstrated their respect for the rule of law. They respect core constitutional principles, especially those that define the rights of each citizen. They have demonstrated their commitment to finding the law, not making the law. They respect stare decisis, the deference to well-accepted past decisions that have kept the Nation strong by reconciling traditional principles with new needs and challenges. They show respect for the basic structure of Government, especially for Congress when it acts within its established powers. They have demonstrated the ability to subordinate their own ideological and result-oriented preferences to the rule of law.
Especially at the Supreme Court level, the choices should not be partisan choices based on today's partisan issues. The Justice we may select this year could well be providing justice to our children and grandchildren for decades to come. It is more important that the nominee have a strong dedication to principles of justice than a strong position on controversial issues of the day.
It is a disservice to the Court to attempt to install ideological activists bent on making sudden and drastic shifts in the Court's careful, gradual jurisprudence. The Supreme Court is at its worst when it splits into extreme, contentious sides, and reaches extreme results that make much of the Nation cringe and leave only the ideological activists satisfied.
Like sausage and legislation, the confirmation or rejection of a Supreme Court nomination is not always something pleasant to watch or be part of. The course is set by the President. If the President submits an ``in your face'' nomination to flaunt his power, it takes time and effort and sweat and tears before the truth about the candidate is fully discovered and explained to the public and voted on.
We are fortunate to have had a dress rehearsal for the process. Before the White House decided to threaten the Senate with the nuclear option, few Americans had any idea what was happening here and how important it was. It took some time, but eventually the public understood the seriousness of the threat to break the rules in order to change the rules, so that for the first time in Senate history, a bare majority of the Senate could impose a gag rule on every other Senator and enable the President to exercise absolute power over the courts without meaningful review by the Senate. Fortunately, the Senate stepped back from that brink, and the Senators who reached that bipartisan agreement to make it possible deserve great credit.
Those who want the Senate to be a rubber stamp for a White House nominee to the Supreme Court will undoubtedly try to rush us through our duty. But if we are to do our job for the American people in good faith, the process of considering a Supreme Court nominee cannot be rushed. It will take time to obtain the necessary information and documents, and to review and understand them. It will take time to gather witnesses and prepare for hearings. If the nomination is not a consensus nomination, the hearings will be intensive and extensive. If the nominee is evasive, there will be longer hearings and follow-up questions, which will also take time to analyze. Only when all the information is available and fairly considered, can the nomination go forward.
If President Bush resists his fringe constituencies, and seeks the advice of the Senate as he should, the nomination process can have a happy ending. I hope our colleagues across the aisle will urge the President to respect the May 23rd bipartisan agreement and its memorandum of understanding, and take to heart its serious request that he consult with Senators from both parties before proposing a Supreme Court nominee.
We already have in place a process for doing so. In selecting district judge nominees in our States, the White House sends us the list of persons being considered seriously, and asks for our comments on each, as well as our suggestions for additional names to consider. When they have narrowed down the list, they share the short list with us, so that we can give our final advice as to which ones are best and which ones would raise problems. Almost always, our advice is considered and respected. As a result, most District Judges go through the confirmation process quietly and expeditiously, and obtain the consent of the Senate.
Article II, Section 2, Clause 2, of the Constitution clearly says, ``with the advice and consent of the Senate,'' not the advice of anyone else, just 100 of us here in the Senate, who speak for all the American people. It doesn't take much to get our consent. All the President has to do is seek out his preferred non-ideological choices, ask us about them, and listen to our answers.
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