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Energy Policy Act of 2005




Mr. McCONNELL. I was listening carefully to my friend's comments about the process by which we react to the President's nominees to the Supreme Court. Did I hear my colleague correctly, in discussing the issue of what is or is not a mainstream nominee, that Ruth Bader Ginsburg, for whom I voted--and I believe the final vote was something like 96 to 3--had at one time speculated that there might be a constitutional right to prostitution? Did she not suggest that at some point in one of her writings?

Mr. CORNYN. The distinguished assistant majority leader is correct.

Mr. McCONNELL. Also, had she not suggested at one point that there be a uni-sex ``Parent's Day'' instead of a Father's Day or a Mother's Day, or something similar to that?

Mr. CORNYN. Again, the distinguished assistant majority leader is correct.

Mr. McCONNELL. I ask my friend from Texas, is it not the case that many nominations that have been sent up here by Presidents have opined, from time to time, controversial or provocative views, particularly if they have had a background as a teacher, that might strike many of us on this side of the aisle, and I suspect a majority on the other side, as outside of the mainstream to the left?

Mr. CORNYN. I say to the distinguished assistant majority leader that any lawyer--and we are likely to get a lawyer nominated for this important job on the Supreme Court--is going to have taken on behalf of a client, someone they have represented, or if they have taught, as the question suggests, during the course of their academic musings, programs, or writings, in Law Journal articles or otherwise, they are going to engage in the kind of intellectual exercise speculating perhaps about the limits of the law or what the law would or would not be under a particular set of circumstances.

It is simply unreasonable to ascribe to those nominees, let's say, the views of someone they are defending in a criminal case because they have volunteered to serve pro bono to defend somebody accused of a crime, or to ascribe to them as their own personal beliefs or ones they will actively seek and enforce from the bench or what they have written in academic writings on perhaps the limits of the Constitution or what would or would not stand up in a particular court decision.

I agree we should be fair to the nominees. We should require they rule in accordance with precedent and the intent of Congress when it comes to interpreting acts of Congress. But we should not try to mischaracterize them or paint them as out of the mainstream by viewing in isolation some of these writings or representations in their legal practice.

Mr. McCONNELL. Finally, let me ask, is it not largely the case, I ask my colleague from Texas, that until the last few years, controversial or provocative comments or writings have, in fact, not been used as a rationale for defeating nominees, assuming they are lacking in qualifications or ``outside the mainstream'' as a rationale for defeating otherwise well-qualified nominees?

Mr. CORNYN. As the distinguished assistant majority leader knows, there has been a mischaracterization of the record of many nominees who have come up in recent times and one I hope we do not see repeated when we have this Supreme Court vacancy to consider, the President's nominee. But we have not had a good record recently of treating these nominees respectfully, understanding that these are people who are subjecting themselves to this process and public service at some personal sacrifice. I worry if this process becomes too mean and too unfair that we will simply see people who will not answer the call when the President requests they serve as a judge.

We have seen those kinds of characterizations and attacks, as the assistant majority leader described them. It is my hope, and I know his, that we will not see a repetition of that, but we will see a respectful process. We will see one where the Senate does its job. We ask tough questions. We do a thorough investigation. But at the end of the day, we do not try to paint these nominees as something they are not and that we have an up-or-down vote on these nominees, as we have had for more than 200 years.

Mr. McCONNELL. I thank my friend from Texas for responding to my questions.



Mr. McCONNELL. Mr. President, I listened with interest this morning to the remarks of our Democratic colleagues. They talked about a potential Supreme Court vacancy. While we have no knowledge of the occurrence of such a vacancy at this time, our friends implored the White House to consult with them in selecting a Supreme Court nominee. It is on this subject that I wish to make a few observations in the event such a vacancy were to occur.

From time to time, Senators may suggest to a President who he should nominate to the Federal bench. Sometimes Presidents agree with the suggestions and sometimes they do not. This White House has observed this practice, and I believe it will continue to do so. But we should not confuse the solicitude that any President may afford the views of individual Senators on a case-by-case basis with some sort of constitutional right of 100 individual Senators to co-nominate persons to the Federal court.

Unfortunately, I am afraid our Democratic friends are under a misapprehension that they have some sort of individual right of co-nomination. In the past, our colleague Senator Schumer has said that in his view--in his view--the President and the Senate should have ``equal roles'' in picking judicial nominees.

And just last week, and again on the floor this morning, my good friend from Vermont said that he ``stands ready to work with President Bush to help him select a nominee to the Supreme Court.''

Such a view of the confirmation process is completely at odds with the plain language of the Constitution, the Framers' intent, common sense, and past statements of our Democratic friends themselves.

Let's start with the Constitution. Article II, section 2 provides that the President, and the President alone--no one else--nominates. It says ``the President shall nominate.'' It does not say ``the President and the Senate shall nominate,'' nor does it say ``the President and a certain quantity of individual Senators shall nominate.'' It says ``the President shall nominate''--the plain words of the Constitution.

It then adds that after he nominates, his nominees will be appointed ``by and with the Advice and Consent of the Senate.''

This plain language meaning of article II, section 2 is confirmed by the Founding Father who proposed the very constitutional language I just cited. Alexander Hamilton wrote that it is the President, not the President and members of the opposition party, who nominates judges. Specifically, in Federalist No. 66, Alexander Hamilton wrote:

It will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice--

I repeat, no exertion of choice-- on the part of the Senate. They may defeat one choice of the Executive and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice [of the President].

Nothing could be more clear--Alexander Hamilton in Federalist No. 66 interpreting the plain language of article II, section 2 of the Constitution.

The Framers were, of course, as we all know, brilliant. They recognized that the judicial confirmation process would not function at all if we had the President and a multitude of individual Senators selecting judges. How could a President hope to accommodate the views of 100 different Senators on who he should nominate, each of whom might submit their own slate of nominees? That is why the only person who won a national election is charged with the power of nomination--the only person who won a national election is charged with the power of nomination.

Our Democratic friends at one point at least recognized this as well. For example, during Justice O'Connor's confirmation hearing, my good friend from Delaware, the former chairman of the Judiciary Committee, said:

I believe it is necessary at the outset of these hearings on your nomination--

Talking to Sandra Day O'Connor at the time-- to define the nature and scope of our responsibilities in the confirmation process, at least as I understand them. ..... [A]s a Member of the U.S. Senate, I am not choosing a nominee for the Court.

This is our colleague from Delaware.

..... I am not choosing a nominee for the Court. That is the prerogative of the President of the United States, and we Members of the U.S. Senate are simply reviewing the choice that he has made.

That was Senator Biden in 1981.

And on the subject of deference, I must respectfully disagree with my good friend from Massachusetts, Senator Kennedy. Professor Michael Gerhardt, on whose expertise in constitutional law our Democratic friends have relied, notes that:

The Constitution ..... establishes a presumption of confirmation that works to the advantage of the President and his nominees.

Finally, let me reiterate that at the end of the day, the Senate gives the President's nominees an up-or-down vote. This has been the practice even when there were highly contested Supreme Court nominees. There were no Supreme Court nominees more contested than Robert Bork and Clarence Thomas. Yet those Supreme Court nominees received up-or-down votes. I expect the same courtesy will be afforded to the next Supreme Court nominee regardless of who the nominating President is.

I thank the Chair, and I yield the floor.

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