Supreme Court

SUPREME COURT -- (Senate - June 28, 2005)

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Mr. KENNEDY. Mr. President, on another matter, we all wish the very best to Chief Justice Rehnquist. He has made the quality of the Federal courts the special mission of his leadership, and the Nation and judiciary are grateful for that leadership. Hopefully, he will continue to serve as long as he wishes and is able.

In the event of a resignation, a new Justice should be someone who is committed to the rule of law and the rights and freedoms of all Americans and can therefore win broad support in the Senate and the Nation. Like many Presidents before him, the President can easily choose such a nominee if he follows the constitutional requirement that he obtain the Senate's advice as well as its consent. I hope President Bush chooses the path of consultation and consensus and not the path of confrontation and conflict.

The Constitution requires the Senate to be an independent check on the President, especially in protecting the independence and fairness of our judges. The Founders very deliberately made the appointment of Federal judges a shared responsibility of the Senate and the President. It is ridiculous for some on the other side to claim that the Founders would not have wanted such consultation to occur. In fact, the Founders came within a hair's breath of assigning the entire responsibility for appointing judges to the Senate. It was a last-minute compromise at the Constitutional Convention in Philadelphia in 1787 that gave the responsibility to the President but only with the advice and consent of the Senate.

As the chairman of the Senate Judiciary Committee has clearly pointed out, the advice function is as important as the consent function in the exercise of the shared power of the President and the Senate in appointing judges and Justices. Presidents all the way back to George Washington and right up to Bill Clinton have consulted with the Senate on Supreme Court nominations, and when they have done so the result has been a better Supreme Court.

The wise procedure was made even more explicit in the memorandum of understanding written by the 14 Senators from both parties last month when they urged the President to consult with Members of both parties in the Senate. Why are some of our Republican colleagues in the Senate so opposed to such consultation? Do they fear that if the President seeks the advice of a broad range of Senators, he may be persuaded to make a consensus nomination to the Supreme Court? Are they against consensus? Do they see the Supreme Court nominations merely as political footballs in their political games? Before any person can be appointed to the Federal court, the Senate and the President have to agree that the person will be best for the whole country, not just for a narrow ideological and radical faction.

Some Presidents have ignored the requirement to obtain the advice of the Senate, but no President can avoid the requirement to obtain the consent of the Senate. I certainly hope President Bush will not heed those who think consultation and consensus are obsolete. Whether the confirmation process goes smoothly will be determined by the President's selection.

He can pick judges with us as the Founders wanted or he can pick fights with us as some of his political advisers and Senate friends seem to want.

The President's choice is clear. He could follow the Constitution and seek the advice of the Senate before he makes a nomination. If he does that, the confirmation process is more likely to be expeditious, constructive, and a unifying force for the entire Nation. Or he can listen only to the advice of the fringe factions of his own party, people so extreme they have even called for the impeachment of six of the current nine Justices because those Justices refuse to bow to the ideological dictates of the rightwing. If he does that, the confirmation process will be divisive and corrosive and likely unsuccessful. There are hundreds if not thousands of excellent lawyers and judges who could be consensus choices for the Supreme Court, and Senators will help the President find them if he seeks our advice. If he takes our bipartisan advice, he will have no trouble obtaining our bipartisan consent.

The next person who serves on the Supreme Court will not just serve for the remainder of the Bush administration. The lives and freedoms and rights of our children and our grandchildren may well be directly affected by the decisions of that Justice in the coming decades. For their sake and the Nation's sake we cannot accept a choice based on partisan politics or ideological agendas. What the Court and the Nation need is a demonstrated commitment to the rule of law and the basic values of our Constitution. I urge President Bush to listen to a respected former Republican, Senator John Danforth:

If he truly wants to appoint a conservative he should make sure it is a judicial conservative, someone who is going to apply the law, not his political or philosophical beliefs.

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