The San Diego Union Tribune - Picking a Judicial Nominee Who Unites
By Joseph R. Biden, Jr.
The resignation of Justice Sandra Day O'Connor from the U.S. Supreme Court presents President Bush with the opportunity to unite the country. The most important criteria a president should use in exercising his or her constitutional duty to appoint justices to the Supreme Court should be the independence and impartiality of the nominee. This is precisely what all Americans expect in a Supreme Court Justice.
President Reagan recognized this a quarter century ago when he enthusiastically accepted the recommendation of Arizona Sen. Barry Goldwater and nominated Justice O'Connor - a mainstream conservative who came to the court with an open mind and true judicial temperament. It is my hope that President Bush honors Justice O'Connor's legacy by choosing someone in her mold.
Justice O'Connor satisfied both the standards of independence and impartiality, and I was proud to support her nomination. Not because I always agreed with her - far from it. I strongly disagreed with positions she took in several cases, including some very important ones. But I admired the way she approached her job: with open-mindedness, without ideological preconceptions, and with sensitivity to the effects her decisions would have on the American people.
I would hope the president looks to these traits in selecting a nominee. When other factors, however, such as ideology, become preeminent in a president's selection, the Senate itself must engage in stricter scrutiny and to take a closer look at a nominee's constitutional philosophy.
The American people have a vital interest in an independent and impartial judiciary, one that doesn't just become a political arm of one party or another. The American people have a right - and duty - to ensure that a nominee will be someone who all Americans can trust to protect our cherished rights and freedoms.
And remember that a president's Supreme Court appointments far outlast his or her administration. Justices appointed by Presidents Nixon, Ford, and Reagan are still serving on the court, casting crucial votes a generation after those presidents left office.
In considering this Supreme Court vacancy, it is my hope not only that the constitutional system will work as it should - I'm confident of that. It is also my sincerest desire that it will work with a minimum of the tension between the branches that we have witnessed far too often in recent years; that the president will truly seek the advice of the Senate, that he will look first for detachment and statesmanship in a nominee - a nominee who will disregard the importuning of special interests.
It has been 11 years since we last had a vacancy on our nation's highest court - the longest uninterrupted court since 1823. This means that over half of current senators, 56 to be exact, have never been faced with a nomination.
Over my 32 year career in the Senate - with half of those years serving as chairman or ranking member of the Senate Judiciary Committee - I have voted on 10 Supreme Court nominees, and while the issues under review have changed the terms of my review have not.
Put simply, the Founders intended the Senate to take the broadest view of its constitutional duty. The advice and consent clause, in fact, arose from a determination at the Constitutional Convention, which united north and south, small states and large, that the president not be permitted to amass too much power.
And the Senate has rightly not been shy in utilizing this authority. During our country's history about 20 percent of individuals nominated to the Supreme Court by the president were not permitted to take their seat. Indeed, for the Senate to simply rubber stamp a president's nominees would be to aid and abet in the erosion of its own constitutional responsibilities.
But we don't have to have a confirmation process characterized by confrontation and division. The Senate's level of scrutiny of a nominee is, in large part, determined by the president's own actions. When a president selects nominees to the court primarily on the basis of detachment and statesmanship, with a sensitivity to the balance of the court and to the concerns of the country as a whole and, the Senate should be inclined to respond in kind. That's what happened when President Nixon appointed Justice Powell (89-1), when President Ford appointed Justice Stevens (98-0), and when President Clinton appointed Justices Ginsburg (96-3) and Breyer (87-9).
Just as Justice O'Connor deserves a happy and full retirement, the nation deserves an independent and impartial nominee, one who will not force a divisive battle over the Supreme Court. That will in large part depend on President Bush's decision on whom to nominate to succeed Justice O'Connor.
Biden, from Delaware is, a senior Democratic member of the Senate Judiciary Committee.