Best Wishes To Justice O'Connor

BEST WISHES TO JUSTICE O'CONNOR -- (Senate - July 01, 2005)

Mr. KENNEDY. Mr. President, I join my friend and colleague, the Senator from Arizona, Mr. McCain, in extending my best wishes to Justice O'Connor and thank her for her long and dedicated service to the Nation. She was a cheerful and thoughtful and highly respected member of the Court, a wise judge who served the Nation and the Constitution well.

Justice O'Connor was a mainstream conservative and was confirmed unanimously by the Senate. I hope the President will select someone who meets the high standards that she set and can bring the Nation together, as she did.

Our Senate debates in recent weeks have included extensive discussions on the need for consultation by the President with the Senate on potential Supreme Court nominations. But such consultation was not mentioned by the majority leader in his address on judges earlier this week, and the omission is glaring, since consultation is the heart of the ``advice'' requirement in the constitutional requirement that the President appoint judges with the ``advice and consent'' of the Senate.

Under the Constitution and the Senate rules, every Senator's hands are on the oars of this vessel. If a substantial number of us are rowing in the opposite direction from the majority leader, we will not make much progress. But if there is a consensus as to where we want to go, we can get there directly and quickly.

The 14 Senators who reached the landmark bipartisan compromise in the nuclear option debate made a pledge to one another and a plea to the President that the advice function must not be given short shrift, and that serious consultation with the Senate in the nomination process is the key to a successful confirmation process.

Separate and independent assessments of nominations by each Senator are precisely what the Framers wanted us to do. They wanted Senators to be a check on the Executive's proposed judicial selections as a safety net for the Nation if the President overreaches by making excessively partisan or ideological nominations.

Mr. President, all one has to do is read the debates of the Constitutional Convention. Our Founding Fathers considered where to locate the authority and the power for the naming of the judges on four different occasions. On three occasions, they gave it unanimously to the Senate--to nominate and to approve. And only in the last 8 days of the Constitutional Convention did they change that to make it a balance between the Executive and the Senate of the United States.

No fair reading of the debates at the Constitutional Convention or the Federalist Papers does not recognize that this is a shared responsibility. The best way we carried that shared responsibility was if there is a recognition by the Executive that he or she--if at a time in the future we elect a woman--has the prime responsibility to nominate; but the final aspect of consenting is in the Senate.

The process works best when there is consultation. It works best when, as we have seen when the leader of the conservative movement in this country, Ronald Reagan, took the opportunity to select Sandra Day O'Connor, who received a unanimous vote in the Senate, a true conservative. But President Reagan was setting the path for that time, and for future times, about how to proceed.

That is the opportunity this President has at the present time. We hope he will be inspired by what President Reagan did in terms of the nominating process.

Just this past week, several of the members of the group of 14 spoke on the floor of the Senate. Just last week, Senator Pryor gave a compelling explanation of the agreement. He said that he was puzzled because people are ignoring a section of the agreement that is as important as any other section, the part dealing with advice and consent. He spoke of the past days ``of bipartisan cooperation between the executive and legislative branches of Government.'' He pointed out that he was a signatory to a unanimously supported letter from the Senate minority to the President calling for consensus and cooperation and calling for bipartisan consultation--the best path to a fair and reasoned confirmation process.

He did not demand that the President sit down with the 14 or pretend that they will supplant the Senate Judiciary Committee and its leaders. But he did urge the President to seek the counsel of Senators from both parties as he makes future nominations. ``Their insight,'' Senator Pryor said, ``could help the President steer a smoother course when it comes to judicial nominations. ..... Just as the 14 Senators did their part to smooth the way for future judicial nominations, the White House [can] do their part by reaching out to the coequal branch of Government.''

How can anyone argue with that wise prescription? How can anyone ignore it, since it comes from one of those who helped bring the Senate back from the brink of disaster? A President would have to be extraordinarily imprudent not to give it great weight.

Another of the signers on the agreement, Senator Salazar, wrote to the President last week with a clear message:

A wide ranging and good faith consultation between the executive and the Senate, as contemplated by the Founding Fathers, is the best way to smooth the path to rapid Senate consideration for all judicial nominations but will be especially important if a vacancy arises on our Supreme Court.

Another of the 14 signers, Senator Nelson of Nebraska, mentioned his own experience in selecting judges. In his letter to the President, he pointed out that even though as Governor he was not required to obtain the advice and consent of his legislature, nevertheless he consulted a great deal with them and found it ``a very worthwhile and successful process.''

He encouraged President Bush to reach out to both sides of the aisle ``so we can move forward on future nominees in a positive and less contentious manner.'' Without this consultation, he said, there could be difficulties, especially regarding future Supreme Court nominations, that might provide the basis for blocking an up-or-down vote which otherwise might not exist.

Even the President has said--once--that he would consult with Senators on judicial nominations, and I urge him to do so. But as yet, there has been no meaningful consultation with the Senate. As the minority leader has made clear, off-the-cuff casual discussions about how nice it would be if a Senator were the choice is not meaningful consultation. To be meaningful, consultation should include information about who the President is really considering so we can give responsive and useful advice.

White House officials made time to meet last week with prominent outside allies on the right who are so sure the President will nominate a nonconsensus candidate that they have put an $18 million war chest in place to defend their nominee. Their advice to the President was clear: They would consent to and support any rightwing judge he selects for the High Court. No wonder he likes to get their advice and consent.

The American people deserve a Senate that will be more than a rubberstamp for a Supreme Court nominee. A Senate that walks in lockstep with the White House is not doing its constitutional job. It is not doing the job the American people sent us here to do: to protect their rights and freedoms.

If the President abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee, and we intend to do so.

Mr. President, I hope President Bush will follow Ronald Reagan's example and ignore the advice and arguments of those who prefer an ideological activist. He knew that the best thing for the country would be someone who we could all unite behind, and he chose such a person: Sandra Day O'Connor.

Mr. President, I yield the floor and suggest the absence of a quorum.

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