NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
Mrs. CLINTON. Mr. President, I listened with great interest to my friend and colleague from Utah. I have the highest respect for him. I must confess, in listening to him, though, it brought to mind that wonderful old saw about trial lawyers. You know: If the facts aren't on your side, argue the law. If the law isn't on your side, argue the facts. If neither the facts nor the law are on your side, pound the table and hope nobody notices. From my perspective, that is exactly what we have been hearing from our friends on the other side with respect to this very important matter that is not just about a nomination but about the role and responsibility of the Senate under our Constitution.
I rise today to expand on the points I made yesterday because, after further reflection and careful thought about this body's constitutional obligations to provide advice and consent on judicial nominations, I believe there are even greater reasons for us to focus during this time on that responsibility.
There has been, clearly, a debate going on about the role of the Senate in judicial nominations, and many of my friends on the other side have made the point that their view is the Senate defers to the executive when it comes to judicial nominees. That would certainly be a surprise to the 42nd President of the United States, that that is the position of my friends on the other side.
Furthermore, there are those who argue the Senate's role is to give advice and consent, but that does not encompass an inquiry into a nominee's judicial philosophy.
I, for one, believe on both of those grounds our colleagues are mistaken. I have done some further research and inquiry into what is it we mean when we open up our Constitution and we look at article II, section 2 and we see these words, "advice and consent." Given the extraordinary brilliance and the economic use of words in the Constitution, I assume every word means something. Each word was battled over. Each word was poured over. A lot of effort went into coming up with those words that would help to guide our infant Nation. So I take advice and consent very seriously.
It is particularly important to recognize I am not alone in viewing this obligation with seriousness. From the very beginning of our country it has been a concern. It was one of those elements in the balance of power that was so carefully constructed among our three branches of Government. It is something I think we ignore at our peril.
What is it we are talking about? Again, I sometimes wonder what our friends and fellow countrymen who might be watching this debate, as they look for something perhaps more interesting or exciting on their televisions, stop and think if they see one of us talking about advice and consent, or talking about our Constitution. Article II, section 2 states that:
The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for and which shall be established by law. . . .
That is what the Constitution tells us. It is our obligation, as it has been ever since this body was formed, to determine what that means and how we apply it. The Framers of our Constitution did not envision the Senate's power of advice and consent to be a mere formality. In fact, at the Constitutional Convention of 1787, the power of judicial appointment was a subject of enthusiastic debate.
The first proposal that came from delegates to the Convention was that the choice of Federal judges should be left to the Senate alonethat it would be this body, acting on its own, that would appoint judges to the bench.
Then a competing proposal was put forth arguing that, no, the President should nominate and appoint judges and that the Senate should have only the power to reject or approve those candidates.
But what was it after the debate that our Founders decided was the American way? How did they conclude what was the proper balance between these competing positions? Clearly, the adopted language was a compromise. And, equally clearly, those who agreed to that compromise did not view our rolethe Senate's roleas insignificant or deferential. In fact, Alexander Hamilton in Federalist No. 76 writes that the Senate's participation in the judicial nomination process was essential in order "to promote a judicious choice of men"of course, he would say men and women were he writing today"for filling the offices of the Union." He further stated that the Senate's advise and consent role serves as "a considerable and salutary restraint upon the conduct" of the President.
There is plenty of evidence that exists which demonstrates what the Framers intended with respect to the advice and consent clause. This clause added formation and, in all of the decades since, contemplated a strong and decisive Senate role that would serve to advise and consent with respect to the President's nomineesor, to put it another way, would serve to balance the power of the President's nominating authority by Senate legislative power.
This strong role that the Constitution granted the Senate has only grown stronger in the years following the adoption of our Constitution. We know very well that members of both parties have historically expected judicial nominees to be fully candid and forthright with any information that Senators deem relevant. The Republicans are acting as though the questions we are asking and the opposition which we are presenting to the process that has been adopted and the responsesor, I should say nonresponsesof the nominee are unprecedented. But I have to just point to recent history. We don't have to go back to the Federalist Papers. We don't have to go back to the 19th century. We only have to go back a few years to find many instances in which my friends on the other side did not rest until they had satisfied themselves with the information provided by nominees sent up by a Democratic President.
A June 22, 1998, floor statement by Senator Hatch demonstrates that the advise and consent obligation is indeed a strong one. Here is what he said:
While the debate about vacancy rates on our Federal courts is not unimportant, it remains more important that the Senate perform its advice and consent function thoroughly and responsibly. Federal judges serve for life and perform an important constitutional function without direct accountability to the people. Accordingly, the Senate should never move too quickly on nominations before it.
I couldn't agree more. I think Senator Hatch was right in 1998.
He also stated that he had "no problem with those who want to review . . . nominees with great specificity."
That is all we are asking for. But we can't review this nominee with great specificity because he has become kind of an emblem of nonspecificity with nonanswers and nonresponses.
It is really hard to imagine someone being considered for the important position that he would hold for life telling Senators who inquired that he really didn't have anything to say about any Supreme Court decision in the history of the Court.
Of course, my colleague from Mississippi, Senator Lott, has also reminded us that:
Yes, the President has a right to make nominations to the Federal bench of his choice. However, wenamely, the Senatehave a role in that process. We should, and we do, take it very seriously. We should not give a man or a woman life tenure if there is some problem with his or her background, whether academically or ethically, or if there is a problem with a series of decisions or positions they have taken.
Of course, we don't know whether there is any problem with respect to this nominee's decisions. He has never been a judge, and we have no idea what his positions are on anything.
It is hard to imagine that any Member of this body could, as some of my colleagues on the other side have been saying over the last days, say that we really do not have to worry too much about this advice and consent clause because the Senate plays only a minor role in the nomination process. I would be more than happy to provide a list of citations and references so that any Senator who has been led to believe that would know it is not the case.
In fact, one of the very best descriptions of what advise and consent means in the Constitution that I have able to find comes from a very well respected former Republican Senator from Maryland, Mr. Charles McC. Mathias. In 1987, Senator Mathias submitted an essay that was published in the University of Chicago Law Review, a very prestigious publication. The essay is entitled "Advice and Consent: The Role of the United States Senate in the Judicial Selection Process." This I would commend to all of my colleagues because the debate we are having today is not just about one nominee. And it is not just about one President or one political party. It is about how we fulfill our constitutional obligations. Senator Mathias has it just right.
Among the important points he makes are the following:
Among all the responsibilities of a United States Senator, none is more important than the duty to participate in the process of selecting judges and justices to serve on the Federal courts.
Senator Mathias goes on:
The Senate's duty in this sphere is extraordinary. Most other senatorial decisions are subject to revision, either by the Congress itself or by the executive branch. Statutes can be amended, budgets rewritten, appropriations deferred or rescinded, but a judicial nomination is different. When the Framers of the Constitution decided that Federal judges shall hold their offices during good behavior, and may be removed only by the rarely utilized process of impeachment, they guarantee respect for the principle of judicial independent.
Senator Mathias goes on to point out:
It will no longer provideTheir decision also meant, however, that the vote to confirm a judicial nominee must express the Senate's confidence in the nominee's ability to decide the burning legal controversy not only of the day but of future decades as well. The Constitution gives the Senate the consent power, not as a mechanical formality but as an integral part of the structure of government . . . If the Senate does not take its role seriously, it will lose its effectiveness as, in Hamilton's words
"a considerable and salutary restraint upon the conduct" of the President.
Senator Mathias points out what should be obvious to us all. A nominee should:
[E]merge from the nomination process knowing that the president and the Senate have confidence that he will preside with only one unalterable loyalty, to the Constitution, and with only purpose, to assure the individual standing before him a judgment based upon the law of the land.
Senator Mathias makes another very critical point in his University of Chicago Law Review article about the advice and consent clause. He says:
The Senate must be convinced that a nominee is impeccably competent. But competence alone is not sufficient. It is not enough that a nominee be skilled in legal argument and knowledgeable about legal doctrine, and that . . . he be able to write clearly and forcefully.
A candidate for the federal bench must, as Hamilton wrote in Federalist No. 78; "unite the requisite integrity with the requisite knowledge." The nominee also must exhibit a strength of character and a range of vision that will help [him] look beyond the world that exists on the day on which [he] is nominated. . . .
[T]he full senate should have the opportunity to consider each nomination on a complete record. . . .[Senators] should have the opportunity to review the transcripts of hearings and to solicit other advice on the merits of the issue before voting.
The goal of these procedures is not to second-guess the judgment of the president in submitting the nomination to the Senate, but to ensure that the factors underlying that judgment are sufficiently disclosed to permit the Senate to make an informed and independent evaluation of the president's choice.
That is really the nub of what we are concerned about.
Listen to the words of a former Republican Senator who served with great distinction in this body:
The goal . . . is not to second-guess the judgment of the president . . . but to ensure that the factors underlying that judgment are sufficiently disclosed to permit the Senate to make an informed and independent evaluation of the president's choice.
Senator Mathias concludes:
For when the Senate carries out its function of advice and consent, its first loyalty must be not to the political parties, nor to the president, but to the people and the constitution they have established.
It is not only former Senators who have understood this and would be astonished at the amnesia that seems to have descended upon us about what the debate among the Framers was, about what the settled law and understanding of the Constitution was, about what distinguished Senators who served in this body always believed it to be. But this is the weight of all of the legal and academic analysis of the clause that has been done over so many years.
One of the most effective and thorough analyses of the advise and consent obligation is found in a joint statement by Philip Kurland from the University of Chicago and Laurence Tribe from Harvard, dated June 1, 1986, entitled: "Joint Statement to the Senate Judiciary Committee on the Role of Advice and Consent in Judicial Nominations," submitted to the Judiciary Committee. I ask unanimous consent that it be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
June 1, 1986.
To the Senate Judiciary Committee:
The United States Senate has too often been confused and uncertain about its role in approving Federal judicial nominees. The Constitution entrusts the power to appoint the member of the third branch of the National Government not to the executive branch nor to the legislature, but to both political branches together: the President nominates, but the Senate must confirm. Providing "advice and consent" on judicial nominations, therefore, is no mere senatorial courtesy but a constitutional duty of fundamental importance to the maintenance of our tripartite system of government.
Those who wrote the Constitution certainly did not envision the Senate's power of "advice and consent" to be a formality. The allocation of the appointment power was the subject of keen debate at the Constitutional Convention of 1787, which initially proposed a draft that left the choice of Federal judges to the Senate alone. The adopted language was a compromise, and it is clear that those who agreed to the compromise did not view the Senate's role as merely ceremonial or ritualistic.
The reasons that the Framers contemplated a strong Senate role in the process of judicial appointments are plain. It must be remembered that Federal judges are not, like the President's cabinet, to serve the will of the Chief Executive, but officers appointed for life to a separate and independent branch of government. If those appointed to these lifetime judicial posts should ultimately prove unequal to the task or unsuited to the role, they cannot be dismissed. Impeachment by the House and trial by the Senate is the only constitutionally authorized method of removing unfit judges, and the great difficulty of such a process makes it usable only in situations of outrageous misconduct. The only practical opportunity to consider the merits of a judicial candidate, therefore, is before that appointment is made. It thus becomes not only appropriate, but obligatory, that the Senate pass on judicial nominees with greater scrutiny than it reviews the President's choices for his own subordinates.
Whatever the philosophy of government or theory of law, the demands that the Nation makes on its Federal judges are indisputably great. The Federal courts play an increasingly critical part in American government. The men and women of the Federal bench must possess open minds that are capable of grasping sophisticated legal analysis, and that can grapple intelligently with fundamental constitutional issues. To Federal judges is given the task of policing the boundaries between State and Federal government, of giving principled articulation to the content of the basic human rights protected by the Constitution, of enforcing the myriad and complex Federal statutes and regulations, and of overseeing complicated commercial and criminal litigation. Senators therefore have a duty, both to the Constitution and to the Nation's citizens, businesses, and public and private institutions to ensure that the President's nominees have the experience, the talent, the intellectual acumen, and the fairness of mind to perform their functions and, particularly in the case of appellate judges, to contribute lucidly to a body of legal precedents that can enlighten and guide trial courts, litigants, and those who must try to enlighten and guide trial courts, litigants, and those who must try to anticipate what courts will do.
Candidates for the Federal bench should meet a higher standard than that required for most government officers. A career marked by integrity, capacity, wisdom, and commitment is the minimal qualification. If it is not readily apparent that a candidate is truly distinguished, the burden should be on the President to demonstrate the merits of the nominee. A nominee's entire recordprofessional achievements, public service, academic credentials, appellate briefs or other legal writings, scholarly or other publicationsshould be reviewed carefully to screen out the merely competent, and certainly, the simply mediocre. Respect for the institution of the Federal courtsand for the onerous responsibilities of the Federal benchrequires nothing less.
The responsibility of appointment to the independent judiciary was divided between the White House and the Senate in part to avoid burdening the Federal courts with candidates selected solely to satisfy criteria unrelated to judicial excellence. The President is certainly entitled to prefer loyal supporters and like-minded thinkers in choosing among the exceptionally qualified; but no President has a right to treat Federal judgeships as mere patronage appointments simply to reward friends or to assure a judiciary packed with "true believers." And the Senate is surely not required to defer to the appointment of men and women whose most salient qualification is their location in a particular partisan line-up or their devotion to a particular cluster of political or philosophical views.
The Senate has the further obligation to assure itself that a nominee's substantive views of law are within the broad bounds of acceptability in American public life and not on its lunatic fringeswhether left or right. The Republic may demandand its Senators ought therefore to ensurethat is life-tenured judiciary does not disdain the Bill of Rights or the Fourteenth Amendment's command for equal protection of the laws and due process.
The absence of evidence of a nominee's lack of adherence to constitutional values should not be deemed a sufficient ground for confirmation. When dealing with a lifetime appointment to the Federal bench, rather than the trial of a criminal defendant, one's doubts as to a candidate's commitment to the Bill of Rights or to constitutionally commanded equality must be resolved in favor of the Constitution rather than the candidate.
None of this is to say that the Senate, any more than the President, is justified in using litmus tests that seek out a candidate's unswerving commitment to upholding or reversing a particular * * * dealing with * * * vised than the confirmation of "single-issue" nominees who appear to have been selected solely on the basis of their aversion to or endorsement of one particular line of legal doctrine.
Finally, the Senate must realize that, in the appointment process, the power of nomination belongs to the President alone. Senators are not entitled to a "short list" of their own. Therefore, it is not a sufficient objection to an otherwise legally distinguished and constitutionally acceptable nominee that a Senator would prefer someone from a different part of the legal profession or a different part of the country, or someone of a different race, gender, or ideology. But neither is a confirmation vote in order whenever the best that can be said of a nominee is that he has spent some time in law or public life and is untainted by any major scandal. Even at levels below that of the Supreme Court, where the need for exceptional distinction should be beyond debate, the Nation has a right to expect more than minimum qualifications and probable fitness from its Federal judges. And it has a right to insist that the Senate, whatever the practice of the past decade or two, recall the Framers' vision of its solemn duty to provide advice and consent, rather than perfunctory obeisance, to the will of the President.
PHILIP B. KURLAND.
WILLIAM R. KENAN,
Distinguished Service Professor, University of Chicago.
LAURENCE H. TRIBE.
RALPH S. TYLER, JR.,
Professor of Constitutional Law, Harvard University.
Mrs. CLINTON. Professors Kurland and Tribe, joined by Professors William R. Kenan and Ralph S. Tyler, wrote that:
[P]roviding "advice and consent" on judicial nominations . . . is no mere senatorial courtesy but a constitutional duty of fundamental importance to the maintenance of our tripartite system of government.
Now, that is a mouthful that really says a lot. This little clausejust three wordsis so important to our tripartite; namely, our three branchesexecutive, legislative, and judicialof Government. Well, it is. That is why we advocate it, not at our perilwe will come and gobut at the peril of undermining this extraordinary, brilliant construction of the United States, a tripartite form of Government, kept in equilibrium by a balance of power.
That is a heavy responsibility, to think of giving up advise and consent, giving up the Senate's constitutional duty because, as this statement goes on to say:
The reasons that the Framers contemplated a strong Senate role in the process of judicial appointments are plain. It must be remembered that Federal judges are not, like the president's cabinet, to serve the will of the Chief Executive, but officers appointed for life to a separate and independent branch of government.
If those appointed to these lifetime judicial posts should ultimately prove unequal to the task or unsuited to the role, they cannot be dismissed.
Impeachment by the House and trial by the Senate is the only constitutionally authorized method of removing unfit judges, and the great difficulty of such a process makes it usable only in situations of outrageous misconduct. The only practical opportunity to consider the merits of a judicial candidate, therefore, is before that appointment is made. It thus becomes not only appropriate, but obligatory, that the Senate pass on judicial nominees with greater scrutiny than it reviews the president's choices for his own subordinates.
Whatever the philosophy of government or theory of law, the demands that the Nation makes on its federal judges are indisputably great. The federal courts play an increasingly critical part in American government.
To federal judges is given the task of policing the boundaries between state and federal government, of giving principled articulation to the content of the basic human rights protected by the constitution, of enforcing the myriad and complex federal statutes and regulations, and of overseeing complicated commercial and criminal litigation.
Senators therefore have a duty, both to the constitution and to the Nation's citizens [who sent us here] to ensure that the president's nominees have the experience, the talent, the intellectual acumen, and the fairness of mind to perform their functions, and, particularly in the case of appellate judges, to contribute lucidly to a body of legal precedents that guide [our] courts. . . .
The Senate has the further obligation to assure itself that a nominee's substantive views of law are within the broad bounds of acceptability in American public life and not on its lunatic fringeswhether left or right. The Republic may demandand its Senators ought therefore to ensurethat its life-tenured judiciary does not disdain the Bill of Rights or the Fourteenth Amendment's command for equal protection of the laws and due process.
Even in the absence of evidence of a nominee's lack of adherence to constitutional values, it is something that we have to take seriously. We have to be assured, we have to be reassured, that when we cast our votes, we are doing so in the best interests of our Constitution and our country.
It has been clear in the debate so far that the Constitution has become something of a political football. There are those whowhen the shoe was on the other foot and the occupant of the White House was of another partywere certainly more than ready to ask any question and to raise any objection that they could possibly imagine.
I listened, with great interest, to my good friend from Utah say, with great conviction: We never, ever filibustered a judge.
That may be technically true, but the reason is because they wouldn't give nominees hearings. They wouldn't give nominees votes, and they would not bring them to the floor where they possibly could be filibustered. It is somewhat surprising to hear that argument being made with a straight face.
In the years between 1995 and 2000, the Judiciary Committee refused to hold hearings or to permit votes for more than 50 judicial nominees submitted by President Clinton. Some nominees waited years for a hearing. Some nominees waited years for a vote. One such nominee, a Hispanic judge, Judge Paez, waited more than 1,500 days. Others waited more than 1,500 days, never received the courtesy of a hearing, never received the courtesy of a vote.
So here we are, and we are being somehow taken to task because the other side never filibustered. But they controlled the committee. They didn't have to filibuster. They just let nominees languish, twist in the wind, and eventually disappear. I didn't approve of that. I thought that was unfair to a lot of very decent Americans of tremendous intellectual, academic, and legal experience and qualifications.
What we are doing now is trying to do the work of the Judiciary Committee. The Judiciary Committee would not stand for the prerogatives of this body and insist the nominee answer questions, provide information, require the administration to come forward forthrightly and give the documents and the other background material that was requested. The only way we can exercise our constitutional duty to advise and consent is to raise these issues here in the Chamber.
I want to put this into the context of why this would be important to anybody outside the Senate. Again, I imagine people trying to make sense of all of this, trying to figure out what it is all about. In fact, it is about the people themselves. Senators come and go. Presidents come and go. The Constitution, we hope, not only stays but prevails. The Constitution, which set up this genius form of government, unlike anything that any group of human beings have ever devised for themselves, is our underpinning. It is our bedrock.
The interpretation of it can change from time to time. That is as it should be. That is part of the genius of our Constitutionthat it was an organic, growing document to take into account a nation that started out primarily agrarian and now is in the midst of the information revolution. We couldn't even imagine thinking we had to live and work and govern ourselves in the same way as our predecessors did 200 plus years ago. But the values don't change. The balance of power that is fundamental to our tripartite system of government doesn't change. Human beings may fly through the air in airplanes rather than traverse from place to place on horseback, but fundamental human nature doesn't change.
The reason we have a balance of power is because the Framers were absolutely the best psychologists who ever came together in any place in the world. They knew, as they revolted against a king and a royal system, that they were setting up the potential for self-government. They recognized in order for self-government to work, you had to be realistic about human beings. You couldn't be too optimistic. You couldn't be too pessimistic. You had to get it just right, kind of like Goldie Locks. If you were too optimistic about human nature, you would certainly be disappointed. If you were too pessimistic about human nature, you wouldn't have enough hope to get up and move forward and try to solve problems.
So the Framers had to get it right. And did they ever get it right. They understood completely that we had to restrain ourselves, that we had to have systems that protect against runaway executive power, runaway legislative power, runaway judicial power. They had it absolutely right.
The advice and consent clause is part of how they got it right. I don't care if you are Republican or Democrat, if you served in the Senate in the 19th or 20th or 21st century, they got it right.
What we are saying is we don't want to second-guess the Framers. We don't want to substitute our judgment for theirs. We want to do what we are expected to do by the Constitution.
We wouldn't even be here having this debate if the constitutional responsibility had been fulfilled in the Judiciary Committee. I have listened to my colleagues talk about all of the paper that has been submitted and all of the time that has been taken to pass this nominee through the Judiciary Committee. But they know as well as we that many of the critical questions were never answered. Many of the essential documents that would give us insight into the attitudes and the beliefs and the philosophy of this nominee were never produced and that, in effect, we are asked to basically abdicate our advise and consent responsibility, to turn our back on the Constitution and to do what we are told to do.
That is not what the decision was when the debate took place among our Framers. If you look at the Federalist papers, if you look at all of the commentary in the many years since, this was a solemn duty that was given to the Senate.
When people say: Why are you debating this, I think there are a number of reasons. First, because it seems to those of us who are debating, it is our duty. It is our responsibility. We read the Constitution. We read what people said about it at the time it was written, what people have said about it recently. We read what our colleagues have said about it, when the shoe was on the other foot, and we have to conclude we are fulfilling our constitutional responsibility.
I went back and looked at the Congressional Record at some of the comments some of my friends on the other side have made in the past about what we should do when it comes to advising and consenting. I agree with what they said. When the shoe was on the other foot and it was a Democratic President sending judicial nominees, the same speeches were said on the other side of the floor, which strikes me as definitive, conclusive proof of what this is all about.
For example, Senator Smith, March 9, 2000:
The Constitution gave the Senate the advise and consent role. We are supposed to advise the President and consent, if we think the judge should be put on the court. We do not get very much opportunity to advise because the President just sends these nominations up here. He does not seek our advice. And then we are asked to consent. It seems as if the Senate should be a rubber stamp, that we should just approve every judge that comes down the line and not do anything about the advise and consent role.
I agree 100 percent with what Senator Smith then said:
That is not the way that I read the Constitution. I believe that is wrong. We have an obligation under the Constitution to review these judges very carefully.
In that same vein, Senator Smith on another day, the same month, March 7, 2000, went on to explicate this important responsibility. I wish all of us would listen to it. I think this is exactly right. He said:
I think the constitutional process is very clear, that the Senate has the right and the responsibility under the Constitution to advise and consent.
That is exactly what I intend to do in my role as a Senator as it pertains to the two nominees before us. The issue, though, is whether it is OK to block judicial nominees. We have heard from a couple of my colleagues in the last few moments that it isn't OK to block judicial nominees, as if there was something unconstitutional about it. There is thinking by some that we should not start down this path of blocking a judicial nominee whom we do not think is a good nominee for the Court because it may come back to haunt us at some point when and if a Republican should be elected to the Presidency.
Senator Smith goes on:
Let me say, with all due respect to my colleagues, I am not starting down any new path. I am going to be very specific and prove exactly my point that we are not starting down a new path of blocking a judicial nominee. That path is well worn. We are following a path; we are not starting down any new path.
I could not say it better myself. In fact, I wish I had said it as well. But it is not only Senator Smith, it is also
Senator Hatch, on January 28, 1998:
Conducting a fair confirmation process, however, does not mean granting the President carte blanche in filling the Federal judiciary. It means assuring that those who are confirmed will uphold the Constitution and abide by the rule of law.
Senator Hatch, October 3, 2000:
The President has broad discretion, as we know, to nominate whomever he chooses for Federal judicial vacancies. The Senate, in its role, has a constitutional duty to offer its advice and consent on judicial nominations. Each Senator, of course, has his or her own criteria for offering this advice and this consent on lifetime appointments. The Judiciary Committee, though, is where many of the initial concerns about nominees are raised and arise. All of this information is, of course, available to every member of the Judiciary Committee and must be thoroughly reviewed before the nominee is granted a hearing by the committee. If questions about a nominee's background or qualifications arise, further inquiry may be necessary. Obviously, this is a long process, as it must be. After all, these are lifetime appointments.
Senator Hatch, May 23, 1997:
The primary criteria in this process is not how many vacancies need to be filled, but whether President Clinton, or whoever the President iswhether their nominees are qualified to serve on the bench and will not, upon receiving their judicial commission, spend a lifetime, a career, rendering politically motivated activist decisions.
Then Senator Hatch goes on to say something else I agree with 100 percent:
The Senate has an obligation to the American people to thoroughly review the records of all nominees it receives to ensure that they are capable and qualified to serve as Federal judges.
Listen to that specific point that Senator Hatch made back in 1997: There has to be a thorough inquiry and the Senate has to determine whether a nominee would, upon receiving their judicial commission, spend a lifetime, a career, rendering politically motivated, activist decisions. That is really the nub of what we are looking to determine.
There is more than sufficient concern that the nominee before us would do just that. And the reason why the administration will not, and maybe perchance cannot provide the information requested, is because to do so would make abundantly clear that this is a nominee on a mission, that this is a nominee who will do exactly what Senator Hatch warned about when the shoe was on the other foot; namely, render politically motivated, activist decisions.
Now, there may be some on the other side who believe they would agree with these politically motivated activist decisions, so bring it on. But I don't think that is our responsibility. Our responsibility is to know ahead of time. The American people don't get to interview and vote on these nominees. If some nominee overturns, when he or she is on the bench, fundamental worker protections for people who work hard and play by the rules of what they are supposed to do at work, that affects the lives of millions of Americans. If someone decides they don't like the Violence Against Women Act, or they don't believe there is a right to privacy embedded in the Constitution, that affects millions of Americans.
So I think it is imperative that we listen to what our colleagues on the other side of the aisle said during the 1990s. All of this concern about advice and consent, all of this caution about rushing to judgment and votingslow it down, do a thorough review, don't move too quickly. In fact, don't even give people hearings or a vote in committee. It is imperative that now we try to get back to that balance of power that the Constitution established.
Turning down nominations for a judgeship is something that goes back to the beginning of our Republic. It is not as though this is the first time we have ever had this debate. We have had many nominees rejected, starting with one of President Washington's nominees. John Rutledge was nominated in 1795 by President Washington. Why was he turned down? He was thought to be well qualified. He had quite an experience that could certainly be impressive when examined. He was a member of the Federalist Party, which should certainly ring a bell with my colleagues on the other side. But he was turned down because of his political views.
The idea that somehow the political views and positions of a nominee for a lifetime appointment are off limits to the Senate has no basis in fact, history, or law. The very first nominee in 1795 by probably the most popular President that we have ever had, because he was the firstand lucky for him he didn't have to be compared to other people and given all of the difficulties that our subsequent Presidents have facedbut President Washington's nominee was rejected because of the political positions he had taken.
Of course, that was not the only early nominee to be rejected. President Madison nominated Alexander Wolcott in 1811. He was rejected.
He was rejected. President Jackson nominated Roger Brook Taney in 1835. He was rejected the first time. He came back a year later and was accepted. There are many such situations.
It is revising history to claim that we cannot inquire into someone's opinions. If we are going to put someone on the bench who does not believe there is a right to privacy in the Constitution, which would perhaps lead to the overturning of many decisions that protect people's privacy in the sanctity of their home or with respect to their bodies, we should know that. That person might still be nominated and confirmed, but the American people have a right to know who these people are who are being nominated because they are going to be making decisions that affect the daily lives of Americans.
When you nominate a stealth candidate, when you send him up to the Judiciary Committee and tell him to dodge and duck and divert and do not answer a straight question with a straight answer, is it any wonder that people get a little suspicious and maybe say: Wait a minute; if this man will not even come and tell us what Supreme Court decision he agrees with, going back to Marbury v. Madison, and he says he cannot name one; How about one with which you disagree? Well, I can't name that either; that does not pass the smell test, I am sorry. That is a witness who has been well coached and told: Don't rock any boats, don't answer any questions, don't reveal your true opinions. Just try to get through the process.
That is why we need an advice and consent clause in the Constitution, and that is why the Framers put it there. It very well may be if he answered the questions forthrightly, if he said: My favorite Supreme Court decision is Marbury v. Madison, my least favorite ispick one out of thousandswe would say: We do not agree with you, but OK. But he will not do that.
You have to ask yourself: Why won't he do that? Certainly given the kinds of questions that were asked of nominees during the 1990s that went into all kinds of areastheir associations, the meetings they attended, how they even votedit is hard to understand why this nominee cannot be expected to answer pertinent questions about the law, about his opinions concerning Supreme Court decisions.
The fact he refuses to do so, or has been ordered not to do so, fundamentally defies the constitutional duty of this body to advise and consent.
I know there are those who have argued that there is already an adequate amount of information in the record that should be taken at face value. That is hard to do. That is hard to do because, in the absence of a willingness to answer pertinent, relevant questions, many of us do not believe the nominee has sufficiently subjected himself to the process that this body has established to permit Senators to make an informed decision.
If we go back and look at the reams of material that I reviewed to determine what was the basis for the advice and consent clause, I think that is obvious to us all it is there for a purpose. We ignore it at our peril. We have a duty to abide by it.
I again urge my friends and colleagues on the other side to read the extensive description of the advice and consent clause and the role of the Senate in the judicial selection process by former Republican Senator Charles McC. Mathias.
When my friends and colleagues raise the issue that somehow this is focused on a particular nominee, for whatever reason, I think that does a disservice to the seriousness of our concerns because it was this nominee who would not answer the questions. It was this nominee who did not provide the materials.
My very alert counsel has just reminded me that when Justice Taney was first rejected after being nominated by President Jackson in 1835 and then was renominated and confirmed in 1836, he went on to write one of the most discredited, racist, despicable opinions in the history of our court. Judge Taney was the author of the Dred Scott decision. Maybe the country would have been better off and saved a whole lot of misery if the Senate had delayed action and had never confirmed him when he was renominated. We just never know. We have to do the best we can given our own human limitations and idiosyncrasies based on the information available.
There are some, and I respect their opinion, on both sides of the aisle who say: If the President sends somebody up, I am voting for it, no questions asked. That is how I believe the Constitution is to be interpreted, as far as I am concerned.
With all due respect, I think that is an abdication of responsibility.
For most of us, we try to get behind the nomination. We try to understand, not just the academic or legal background which can be described by where you worked, who you worked for, what clients you had, what cases you tried or argued, but if that is all we did, we could put that into a computer. We would not need the Senate. We would computerize that decision. That is not what we are supposed to do. We are supposed to get behind the statistics, under the resume to satisfy ourselves that the person we give this lifetime job to is motivated by only one reason: to render justice to the best of his ability no matter who the parties are, no matter what the outcome of the matter may be, not to serve a political philosophy or ideology, not to serve a political party or even a President but to really do the hard work of justice.
It is a hard job, it is a really hard job and especially today. There are so many factors at work in our society, so many difficult decisions to be made about how we keep this wonderful, precious democracy of ours moving forward that judges have a very tough job. It is not for the casual or the indolent. It is for people who really care, will work hard, and will follow the law, the Constitution, and their conscience.
We are judging not just a legal resume. We are judging a potential judge. We are asking ourselves: Will everyone who appears before this court get the benefit of a fair rendering of justice?
Until we can satisfactorily answer that question about this nominee, we cannot move forward. We should not move forward. We should follow the words of our colleagues when the shoe was on the other foot and it was a nominee from a Democratic President that caused questions and concerns on the other side.
I personally think that was overdone, and that many good, decent people who would have made fine judges were denied the right to go forward, but it was done in the name of the Constitution. It was done under the rubric of advise and consent.
It is a little hard to understand how my friends on the other side can, with straight faces, say that is not what it means at all. How dare we question this nominee. How can we ask for more information? Because that is what we think our duty is, just as at a previous time those on the other side thought it their duty.
It is difficult to explain how the Constitution's interpretation could flip so quickly. I do not think that is good for the Constitution. I do not think that is good for this body. I do not think it is good for the judiciary. Most of all, I do not think it is good for our country. I think no matter who is in the White House, no matter who is in the Senate, we ought to do our level best to fulfill the duties the Constitution places upon us. That is what I am attempting to do to the best of my ability. I know that is what all of my colleagues attempt to do.
When we face a moment such as this, which seems fraught with so much meaning not only with respect to a nominee and not only with respect to the judiciary but to that fundamental balance of power, we have to be careful. We will live with the precedents that are set.
Lord Acton had it right when he said, power corrupts and absolute power corrupts absolutely.
We must have those checks and balances. We must keep that fabulous, unbelievable genius of our Framers alive. I hope we can see some attention being paid to the legitimate questions and concerns that are being raised about this nominee and about this process and about the Constitution we revere and serve.
I yield the floor.