Selecting A Supreme Court Justice

SELECTING A SUPREME COURT JUSTICE -- (Senate - July 12, 2005)

Mr. KENNEDY. Mr. President, President Bush met this morning with the leaders of the Senate and the Judiciary Committee, and I am sure we all have the same questions. Was this really the first step in a serious consultation process that will be meaningful and will continue in the days and weeks ahead? Will the process result in an effort to select nominees who can bring the Nation and the Senate together instead of further dividing us?

I sincerely hope the answer to those questions is ``yes.'' Consultation is more than a process, it's about an outcome. I hope we are not just going through the motions. That will be up to the President. True consultation is not a one-sided conversation. The President must share his thoughts with all of us as well. I firmly believe the Nation wants and needs us to proceed in good faith and with open minds. The conditions are right for serious cooperation between the Senate and the executive, whom the Framers of the Constitution made ``jointly'' responsible for assuring the quality and independence of the Federal judiciary.

The President has won a second term and does not have to run again. He is freer to carry out his desire to be a uniter, not a divider, despite the pleas from the fringes of the party he leads.

Notwithstanding the constant clamor from the right, the public obviously does not support extreme right-wing positions on key court-related issues. Most Americans opposed the effort by some in Congress to order the courts to intrude into private medical decisions in the Schiavo case. Most Americans also rejected the idea that 200 years of Senate history should be reversed in order to give a narrow Senate majority the absolute power to approve extreme judges.

Our constituents wonder why we seem to spend so much time shouting angrily at one another. ``Washington'' has lost the respect of many Americans because of the atmosphere of confrontation and conflict that pervades Congress and the executive branch. They much prefer us to spend more time and thought on finding common ground. They know that their families, their local governments, their schools, and their own businesses, could not function if they operated in the kind of hostile, polarized environment that often seems to prevail on issues here.

Since the selection of judges is an area where the constitutional Framers placed the decision in the hands of the Senate and the President, we have a special obligation to make choices and take positions that facilitate cooperation and consensus, and avoid choices and positions that provoke confrontation and conflict.

History demonstrates that the Senate and the President can work together on judicial nominations, especially Supreme Court justices. Many of us have been here for the nominations of numerous new Justices--in my case 18 of them. On 13 of those, there was a consensus, with close to 90 percent more of the Senators voting for confirmation. On 5, there was a unanimous vote in the Senate.

It is not difficult to achieve that kind of consensus. We know what the Court needs and what the country expects. Nominees should be excellent lawyers who respect the Constitution, understand the law, and understand and respect the vital role of the judiciary in our Government. Most of the public do not want judges whose goal is to advance a result-oriented agenda, or to take the law on detours of their own. They want judges who proceed from the basic principles that unite us, as reflected in the Constitution and in two centuries of our shared history.

Most Americans would agree with Chief Justice John Marshall that to keep the Constitution relevant and responsive, judges have to be willing to look at it not as an inflexible and technical ``legal code,'' but as a document that sets forth ``great outlines'' and important goals, with the details to be filled in later, by Congress and the Courts. Certainly, when the Framers wrote the copyright clause of the Constitution, they never contemplated computer downloading, but their objective in that clause is something on which laws and legal decisions can build.

Of course, in the minds of most Americans, what defines this country, and about which our courts must be deeply concerned about is our rights and liberties. That is what our ancestors fought for two centuries ago. That is why the Framers spent so much of their time and effort on a governmental structure and a bill of rights establishing and protecting our freedoms--both freedoms to and freedoms from. That is why we fought a civil war to expand freedom. That is why our ancestors came to these shores in the 1800's 1900's why people everywhere still want to come here. There is no freer place in the world, and we must find judges who agree that their first obligation is to keep it that way: to safeguard those freedoms.

Our judges must therefore be aware of freedom's history, so that they know what happens when we are tempted to dilute bedrock rights and liberties by subordinating them to short-term political expediency. The notorious ``Palmer raids'' after World War I, the internment of Japanese Americans during World War II, and the McCarthy era during the cold war are obvious examples of past abuses of which Supreme Court nominees should be well aware.

Next only to protection of their freedoms, Americans expect and want fairness. That means the rights and freedoms we cherish must be applicable to all--rich and poor, popular and unpopular, powerful and powerless--especially the poor, the unpopular and the powerless who may have no other recourse. That is what makes America very special among all the nations of the world. Courts cannot cure all the ills of society, but a court system that purports to provide legal remedies for legal wrongs must make those remedies real. It cannot be credible if it erects impenetrable barriers of money, process, or theory that deprive a right of any meaningful reality.

The American people understand that our system of checks and balances is a cornerstone of our basic rights and liberties. They want us to make sure that the judges we confirm will not permit unconstrained Executive power to usurp legislative power or judicial power. They certainly do not want the Congress or the President to control or interfere with the judiciary. They surely want an independent judiciary.

We can look deeper into each of these general principles on which there is a national consensus, and find areas of agreement and disagreement, but they are clearly a guide for choosing a Supreme Court nominee who can achieve a broad consensus in Congress and the country.

We cannot do so if we adopt an ideological standard promoted by a narrow group as the first principle of the process. It makes no sense to delegate the process to groups or their supporters within the government whose personal goal is to limit the range of nominees to those who will advance their own ideological agenda.

Clearly, the choice is the President's. We can help him if he chooses the route of cooperation and consensus. Hopefully, he will not follow the advice of those who want to pick fights instead of picking judges.

I would like to see a wide open process that begins with a search for Republicans in all walks of legal life--not just judges--selected for the quality of their minds and their commitment to the law, rather than for their adherence to extreme ideologies. I am confident such a search would produce a wide range of eligible candidates who might be able to gain a consensus in the legal profession, among the American people and with the Senate.

President Bush has a unique opportunity to unite us, not divide us. He has an extraordinary chance to do so with this nomination and perhaps other Supreme Court nominations to come. If he does, American people and American history will thank him.

Mr. President, I yield the floor.

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