Transcripts For CSPAN Washington This Week 20160403

Differently than the preceding ones. President , the pressure and tension on the existing process which exploded during the thomas nomination fight make a restoration of what came before judge thomas nomination, even it was desirable, a practical impossibility. That we face my immediate question, can our Supreme Court nomination and confirmation process so rectified discord and bitterness be repaired and it president ial Election Year . Mr. President , history teaches us that this is extremely unlikely. Bitter our nations most and heated confirmation fights have come in president ial Election Years. A confirmation fight over roger tommys tawnys confirmation in 1836, the senate refusal to confirm for nominations for president tyler in 1844, the single vote projections of rejection nominees badger and black by lameduck president s fillmore in the canon in the mid19th century. Approval ofow justices lamarr and fuller in 1888. These are just some examples of these fights in the 19th century. Fourll, while only one in nominations has been the subject of significant opposition, the figure raises the one out of two when such nominations are acted on in president ial Election Years. Twour century there are particularly pointed cases. Five overonfirmation louis brandeis, one of americas greatest jurists. A fight filled with meanspirited, antisomatic attacks on the nominee. Example of how electionyear politics can pollute Senate Consideration of a distinguished candidate. Against a8 filibuster fortisdomination, nomination, before president johnson had even named fortis as his selection is similarly well known by all who follow this. Many pundits on both the left and the right question our tomittees abilities follow through on the bork nomination before the 1988 campaign without becoming entangled in president ial politics. While i believe this concern was misplaced and ultimately disproven, it illustrates how fears of such politicalization and undermine confidence in the confirmation process. Moreover, the tradition against acting on Supreme Court nominations in a president ial year is particularly strong with a vacancy occurs in the summer or the fall of the election season. Justices haveew been confirmed in the summer or fall of the president ial election season, such confirmations are rare. Only five times in our history, mr. President , has summer or fall confirmations been granted, with the latest being august of 1846. The confirmation of Justice Robert greer. No justice has been confirmed in september or october of an Election Year, the sort of timing to become standard in modern confirmation processes. Indeed, in American History, only one attempt to push through a september or october confirmation was a failed campaign to improve fortis confirmation in 1968. I cannot believe anyone would want to repeat that experience in todays climate. Justices of the five who were confirmed in the summer of an Election Year all five are nominated for vacancies that had arisen before the summer have begun. August justice griers confirmation was for a vacancy on the court that was more than two years old. As was the july confirmation of Justice Samuel miller in 1862. Thus, mr. President , more relevant for the situation we could be facing in 1992 is this statistic. Six Supreme Court vacancies have occurred in the summer or fall of a president ial Election Year. Never, not once, has the Senate Confirmed the nominee for these vacancies before the november election. Cases, 1800,e six 1828, 1864, and 1956 the president himself withheld making a nomination until after the election was held. In both of the instances where the president did insist on naming a nominee under these circumstances, Edward Bradford 1968,2 and abe fortis in the senate refuse to confirm these selections. Thus, as we enter the summer of the president ial Election Year it is time to consider whether this unbroken string of historical tradition should be broken. Supportsw what history , common sense dictates in the case of 1992. Given the unusual rancor that prevails with the thomas nomination, the need for some serious reevaluation of the nomination and confirmation process and the overall level of bitterness that sadly infects our political system in this president ial campaign already, it is my view that the prospect for anything the conflagration with respect to a Supreme Court nomination this year are remote at best. The last seven selections for the court, two were not confirmed and two were approved for the most votes cast against them in the history of the United States of america. We have seen how in my view has played far too large a role in the reaganbush nominations today. One can only imagine that role choiceg overarching if a , assuming ais year justice announced tomorrow he or she was stepping down. Should a justice resign this summer . And the president moved to name a successor . Actions that will her distaste for the democratic president ial convention and weeks before the Republican Convention meets. A process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president , to the nominee, or to the senate itself. The nation should be treated to a consideration of constitutional philosophy. All it will get in some circumstances is a partisan bickering and political posturing from both parties and from both ends of pennsylvania avenue. View thatt it is my it a Supreme Court justice resigns tomorrow or the next several weeks, or at the end of the summer, president bush should consider following the practice of the majority of his name assors and not nominee until after the november election is completed. Consider howo must they would respond to a Supreme Court vacancy that would occur in the full throes of an Election Year. President iew that the goes the way of president s fillmore and johnson and presses and electionyear nomination, the Senate Judiciary committee should seriously consider not scheduling confirmation hearings on the nomination until after the Political Campaign season is over. I sadly predict, mr. President , that this is going to be one of the bitterest, dirtiest residents of campaigns we will have seen in modern times. I am sure after having uttered criticizes some will the decision and say there was nothing more than an attempt to save a seat on the court in hopes that a democrat will be permitted to fill it. But that would not be our attention, mr. President. If that were the course we were to choose in the senate do not consider Holding Hearings until after the election. Instead it would be our pragmatic conclusion that once the political season is underway, and it is, action on the Supreme Court nominations must be put off until after the Election Campaign is over. That is what is fair to the nominee and essential to the process. , it seems to me mr. President , we will be in deep trouble as an institution. Others may fret that this approach would lead the court with only eight members for some time. But as i see it, mr. President , the cost of such a result the need to argue three or four cases of the bike the justices forfour are quite minor compared to the cost that a nominee, a president , the senate and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the president if it were to take place in the next several weeks. This may be the only course of action that historical practice and practical realism can sustain. Similarly, if governor clinton then myin this fall, views on the need for philosophic compromise between the branches would not be softened. But rather the process for such, mice would such compromise would be in hand. With this in mind let me start with the nomination process. And how that process might be changed in the next administration. Whether it is a democrat or a republican. It seems to me that within the books and Russian Administration the process of selecting is Supreme Court nominee has become dominated by the right. Toent on using the court an ultraconservative social agenda that the public and the congress ever rejected. In this way all the participants in the process can be cleared well in advance of how i intend to approach any future nomination. With this in mind let me start with the nomination process and how that process might be changed in the next administration, and how i would urge to change it as chairman of the Judiciary Committee where i to be chairman in the next administration. Me that withinto the Bush Administration, as i said, the process has become dominated by the right. Set of using the court as i detailed during the hearings and subsequent debate over judge thomass nomination, this agenda involves changing all three of the pillars of our modern constitutional law. I might add the president has a right to hold these views. The president has a right to try to make his views prevail, legislatively and otherwise. Lets make sure we know, at least from my perspective, what fundamental changes are being sought. There are three pillars of modern constitutional law that are sought to be changed. First, it proposes to reduce the high degree of protection that the Supreme Court is given individual right when those rights are threatened by governmental intrusion. Imperiling our freedom of religion, speech, and personal liberty. I am not just talking about abortion. It proposes those who show the president s view for this radical change. It proposes to vastly increase the protection given to the interest of property when our iety speaks to regulate seeks to regulate the use of such property. Imperiling laws concerned with the environment, worker safety, zoning, and consumer protection. The third objective that is sought is to change a third pillar of modern constitutional law. It proposes to radically alter the separation of powers, to and our threer branches of government, divided government, separating government. To move more power to the executive branch, imperiling the bipartisan, independent regulatory agencies and the modern regulatory state. Toi noted before efforts transform the confirmation process and make good faith debate over these matters, as was the bork confirmation process, kevin 40 by extremists in both parties. These are legitimate issues to debate. Wese who hold the view should change these three modern pillars of constitutional law have a right to hold these views, to articulate them in heaven debated before the American People. Porteds debate has been byforwarded tharted extremists of both parties. President , on the link to concede his agenda in these three areas is at all in with the senate and the American People. Seems determined to try to remake the court, and thereby remake our laws in this direction. I can have only one response, mr. President. Either we must have a compromise with the selection of future justices were most opposed those that are a product of these ideological nomination process. As is the right of others to conclude they should support nominees who are product of this process. Put another way, if the president does not restore the historical tradition of genuine consultation before the white house and the senate on the Supreme Court nominations, or instead restore the common practice of president s who chose nominees who strode the middle ground between the divided political branches, then i shall oppose the future nominees immediately upon the nomination. That theot a request president relinquish any power to the senate or he refrain from exercising any prerogatives he has as president. Rather it is my statement that unless the president chooses to do so i will not lead the power i have been this process to support the confirmation of his selection. Practiced before, the of many president s throughout our history supports my call for more executivesenate consultation. The text ofntally the constitution itself, its use of the phrase, advise and consent to describe the senates rolled an appointment demands greater inclusion of rvs in this process. Our views in this process. I believe its nothing more than a justified response to the letter sizing of the nomination process. To take a common example, the president is free to submit to congress any budget he so chooses. He can submit one that reflects his conservative philosophy, or one that is straddling the differences between his views in hours. That and ours. When the president has taken the former course, no one has been surprised were outraged when democrats like myself have responded by rejecting the president s budget out right. The president works with the philosophically differing senate, or he moderates his choices to reflect that if urchins the divergences nominees, deserve consideration by the senate. When the president continues to ignore this divide and takes nominees are at odds with the onetituents that elected me fight even larger mergin and what they elected him, his nominees i know parenthetically, mr. President , if in this next election the American People conclude that the majority of desks should be moved to that side of the aisle, that they should be 56 republicans and set of 56 Democratic Senators, 44 Democratic Senators instead of 56 or 57 Democratic Senators, and at the same time if they overe to pick bill Clinton George bush, we will have a divided government. I will say the same thing to bill clinton. In a divided government he must seek the advice of the Republican Senate and compromise. Otherwise this Republican Senate will be totally entitled to say i reject the nominees of a democratic president who is attempting to remake the court in a way with which i disagree. Said, some view this position as contentious. Others, i suspect, in fact i know, and a presiding officer knows as well as i do, others will say im not being contentious enough. They suggest their support is moved so far to the right already that its too late for a Progressive Senate to accept compromise candidates from a conservative administration. They would argue that the only people we should accept our liberal candidates which are not itng to come, nor is reasonable to expect to come from a conservative republican president. I believe so long as the public continues to split it confidence between the branches, compromise is a responsible course both for the white house and for the senate. Therefore i stand by my position, mr. President. If the president can cooperate with the senate or moderate his selections absent consultation, can his nominees then his nominees can enjoy my support. If he does not, as is the president s right, then i will oppose the future nominees as is my right. Made themination is evaluation process begins. Here there has been a dramatic change from the bork nomination in 1997 to the thomas nomination in 1991. Let me state this observation. In retrospect the actual events surrounding the nomination of judge bork have been so misremembered that observers have completely overlooked one great feature of these events. That is in most respects the bork nomination served as an excellent model for how can the contemporary nomination and confirmation process and debate should be concluded and conducted. Shortly after judge bork was nominated, after studying his writings and speeches, i announced my opposition to his confirmation. Several other members of the committee did the same. What ensued was an educational and enlightening summer. I laid out the basis for my position in two Major National speeches and other senators did likewise. The white house issued, as they should have, a very detailed paper proposing to outline judge borks philosophy. A group of respected consultants to the committee issued a response to this white house paper. The administration put out a response to that response. While there were excesses in this debate, as i mentioned earlier, by and large it was an exchange in views and ideas between two major constitutional players in this controversy. The president and the senate. Whats the nation could observe and then evaluate. The fall hearing then was significant, not as a dramatic spectacle to see how senators would jockey for position on the nomination, but to see the final act of this debate. Unfortunately though those of us who announced our early opposition to george bork judge bork were roundly criticized by the media. I was accused of rendering the verdict first in trial later for the nominee. That this was unfortunate because this criticism of our early position in the nomination our negative in f consequences for the confirmation process. Rise to agave powerful mythology that equates confirmation hearings to something closer to trials than legitimate legislative proceedings. Endresult has been in the more criticism for the process with a hearings do not meet this artificial standard of a trial. Confirmation hearings are not trials. We are not a court. We are a legislative body. They are congressional hearings. Senators are not judges. We are senators. Is cision on menominee on a nominee is not a major ruling. Neutral ruling. It is at the constitution and designed it. A Political Choice about values and philosophy. We should jump, mr. President , this trial mythology. In the attendant matters that go with it. Way theebate over which presumption goes in the confirmation process, over what the standard of review is, over which side has the burden of proof, all of these terms and ideas are inept for our decisionmaking on confirmation. As they are for our decisionmaking on passing bills or voting on constitutional amendments. We do not apply a trial mythology in those circumstances. A second unattended or unfortunate consequence of the criticism of thorough opposition based on specifically stated reasons. The criticism of taking early stands on nominees has pushed senators out of the summer debate over confirmation and left that debate to others, most especially the Interest Groups on the left and the right. Instead of respecting senators on the left and right arguing prior to the hearing of the nominee, when we stood back that vacuum is filled, mr. President , by the left and the right. As is their right i might add. But they were the only voices that we heard in the debate. They shape the debate, mr. President. Instead of an exchange of ideas the summer becomes washington at its worst. The nominee hunkers down with briefers at the Justice Department preparing for the hearing as a Football Team prepares for a gain. Watching films of previous hearings, studying the mannerisms of each senator, memorizing questions that have been asked, practicing and reversing nonanswers. Outside the two branches busy efforts are underway to form coalitions, launch tv attack campaigns, issue press releases, and shout loudly past one another. This transformation gets its apex hit its apex during the thomas nomination went by my count there were twice as many summer news stories about how Interest Groups were lining up on the nomination and there were about the nominees views. As with our president ial campaigns, public attention in the prehearing. Has been turned away from the debate by principles about real issues into a superficial scrutiny of the horse race. Is the nominee up . As the nominee down today . And discussion among spend doctors, insiders and pundits about what the chances are. The only way to move the focus from the tactics of the confirmation debate to the substance of it is for senators to state our position on the nomination, if possible assuming we know the facts of the philosophy or believe we know the facts related to the philosophy of a nominee and debate them freely and openly before the hearing process begins. Remain undecided about the nomination, i hope more will do what i did with the sueter and thomas nomination and try to publicly address the issues of confirmation before the hearings get underway. Say, id on the floor and do not know with a nominee stands on such and such, but what i want to know as a senator is what is his or her philosophy to the concernis of the individual member . Begin the debate on the issues. When we dont we have learned this town and the press and Interest Groups and political vacuum f l the fill. Fill the vacuum. Of three months of silence is washington is not tolerated by those that live and work in washington. What happens . Pundits,m is filled by lobbying groups, Interest Groups, ideological fringes defining the debate. Tactics. Ting third, mr. President , the taboo against early opposition to a nominee has created an imbalance in the prehearing debate over the confirmation. It seems that no similar taboo exists against prehearing support for a nominee. I have not read a single article, heard a single comment, and when that senator stands up and says i support the nominee that the president named 27 seconds ago, no one says, that is outrageous. Makean that woman or man that decision before the hearing . They all say that is ok. It is ok before a nominee, before the hearing begins. But not to be against the nominee. In the case of judge thomas, while no senator announced his position while no senator announced his opposition to confirmation before the hearing started, at least 30 senators announced their support for the nominee before the Committee First met. No senator said i am opposed. 30 said they were for. That is their right. I am not criticizing that. Thus, my good friend senator eter, andr judge suiete many other senators begin outspoken advocates as is their believed as they firmly became outspoken advocates for the confirmation from day one. While not a single senator spoke in opposition. In my view such an imbalance is unhealthy and again puts too much responsibility for and control over the confirmation debate in the hands of Interest Groups instead of elected officials. 1992, in the aftermath of a bruising and polarizing confirmation process involving Clarence Thomas, who had been nominated by president bush with daysnsultation just four after Thurgood Marshall retired, i take to the senate floor to speak about the Supreme Court nominating process. Leader, mymajority friend Mitch Mcconnell and other republicans today having quoting selectively from the remarks i made in an attempt to justify refusing chief just chief judge garland a fair hearing on the floor of the senate. They completely ignore the fact that the time i was speaking of the dangers of nominating an extreme candidate without Proper Senate consultation. Neglected toly quote my unequivocal bottom line. So let me set the record straight. I said and i quote, if the president consult and cooperates with the senate, or moderates nomineestion, then his may enjoy my support as to Justice Kennedy and justice souter. I would golear forward with the confirmation even if youhairman with a four president ial elections if the nominee were chosen with the advice and not merely the consent of the senate. Just as the constitution requires. Advice toent president s of both parties, including this president , has been that we should engage fully in the constitutional process of advice and consent. My consistent understanding of the constitution has been that the senate must do so as well. Period. They have an obligation to do so. Vacancythere is no after the thomas confirmation we cannot know what the president and the senate might have done. Heres what we do know. As the Ranking Member and chairman of the Judiciary Committee i was responsible for eight justices and nine total nominees to the Supreme Court. More than anyone alive. [laughter] i can be that old. The few i voted against, but in all that time every nominee was greeted by committee members. Every nominee got a committee hearing. Every nominee got out of the Committee Even if they did not have sufficient votes. To pass. Must advisee senate and consent. Includingnominee, Justice Kennedy in an Election Year, got an upanddown vote. Not much of the time, not most of the time, every single solitary time. To hear all this talk about the plight rule biden rule is frankly ridiculous. There is no biden rule. There is only one rule i ever followed on the Judiciary Committee. That was the constitutions clear rule of advice and consent. Article two of the constitution clearly states whenever there is a vacancy in one of the courts created by the constitution itself, the Supreme Court of the United States, the President Shall, not may, the President Shall appoint someone to fill the vacancy with the advice and consent of the United States senate. Advice and consent includes consulting and voting. Nobody is suggesting individual senators have to vote yes for any positional president ial nominee. It is their option. Nothing,othing, seeing reading nothing, hearing nothing and deciding in advance simply to turn your back before the president even names and nominee is not an option the constitution leaves open. It is a plane abdication of the senate of the solemn constitutional duty. It is an application quite frankly abdication that has never occurred quite before in our history. You are watching a special presentation on how washington handled the Supreme Court confirmation process. Were joined by David Hawkings from rollcall and the author of the hawkingsphere blog. We will talk about the administration we had both parties in control of the senate at one time or another, and another a number of fights over filibuster rules. Had the confirmation play out . President bush when his entire first term without an opportunity to fill a seat on the court. Then it was only after he was reelected in 2005 that he suddenly had two Seats Available in a short period of time. Yet another period of divided avernment, the had democratic senate. Sandra day oconnor announced her retirement. George w. Bush nominates john roberts. A couple of months go by. Justice chief Justice William rehnquist dies and george w. Bush decides he likes john roberts well enough to renominate him as the chief justice. Then he has an associate justice job to fill. He nominates his white house counsel, Harriet Miers, who is insufficient by the conservatives. She has to be withdrawn because she has been insufficient republican support. Then george bush nominated send alito samuel alito. The reason in the end roberts is alito controversial and is quite controversial is because of the dynamics of these confirmation fights. Who the new nominee replaces ideologically. Roberts was replacing rehnquist so it was a relatively down the line, strict constructionist conservative replacing another. That was rehnquist. Roberts was perceived as going the same way. In the end; alito was a ofuel alito was a favorite the conservatives to replace a swing vote. He was a favorite of social conservatives and economic onservatives in deregulatory the bench. His views in opposition to abortion rights and down the line in favor of that lets take a look at some of the speeches from the george w. Bush era. One with Patrick Leahy in 2003. It was then braking member of the Judiciary Committee. We will hear from remarks from republican senator orrin hatch of utah who was a member of the Judiciary Committee in the speech from 2005. Lets go first and do some of the things we know. Know as you reported it ruben is the mark and idle. We know instinctively that the Boston Red Sox are poised to break our hearts for the 85th straight year. And we know, and this is something you can speculate on, you know the Bush Administration will try to capture the aid of diamonds or the nine of space in the next few days. We know at least one other democrat went to the president of contest. It is open to everybody. We know its going to rain three out of the next four weekends because thats what it does. Here is what we dont know. Will there be a Supreme Court vacancy later this week or next . I might mention if anybody knows the answer, raise your hand because i let you have the podium because i would much rather hear from you. Regardless of whether we have a Supreme Court vacancy this week, this month or later this year, regardless of whether everyone stays put on the court until after the next election, whether there is a republican or democrat in the white house when the vacancy occurs i have a few thoughts i would like to share. Willnk these thoughts cover no matter who is in the white house. Since the Supreme Court intervention in the 2000 president ial election contest in the bush versus gore case, there has been a lot of speculation about resignations from the court. Those speculations have increased substantially this year. Over the last several weeks every article about the court and its decision has the tea there. Reading in hte es are not just what the decision met, but you may leave. There have been salvos from activists from the president s party pressing him the name a reliable vote. A reliable vote in their favor. And disparaging some potential candidates as being too moderate or too uncertain or perhaps two independent to be trusted. Often these critiques have detoured to defame david tudor s that the founders of this great country envisioned. I might add with a kind of independence the nation sorely needs in a federal judiciary that has been and is still the envy of the world. Ever when the soviet union broke up. Came toof new members washington to visit with members of congress. They sat in my Conference Room and they said because of your position on judiciary, let us ask you one question. I said certainly. They said we have heard they are cases where people sue the government in your country and the government loses. I said it happens all the time. And they said, and you dont replace the judge immediately . [laughter] how muchck me differently are and how much we can show the rest of the world if we stay independent in our judiciary. Have seen recent stories about the planning and fundraising by political and public Interest Groups on both sides of the debate as they prepare for what has been characterized as an upcoming paste confirmation battle pitch confirmation battle. In the week of the Supreme Court decision on affirmativeaction, the front page of the New York Times read angry groups seek justice who oppose affirmative action. Needless to say all of america is not interested in the future Supreme Court, Many Americans are. Its those that are paying attention to understand how great the stakes are for our nation. My message today is that this battle does not have to be armageddon. Y are tried and tested way ways to avoid that. For the sake of the evening evenly divided American People this is the time for the president to try a unifying approach. For last several weeks the storm clouds seven gathering i have been urging the president to choose the better path, along with senator daschle. Other Senate Democrats have asked him to consult with leaders in the senate on both sides of the aisle in advance of any Supreme Court nomination. The goal is to help the president put forward a consensus nominee who would unite, not divide but unite all americans who could be confirmed anywhere from 95 to 100 votes in the senate. What we seek is the head of a contentious battle in which judicial activists in the president s party would rebel in eeking out a controversial nominee by the narrowest margins. That kind of victory would, at the expense of the country, at the expense of the court. It would come at the expense of the independence of our federal judiciary. Ours is a modest proposal but it is steeped in common sense and tradition. Our system of government seeking justice is a worthwhile by weve just value in its own right. We are at a difficult period in our history. Not only to be faced fiscal, security and global challenges but we do it at a time of the electorate is evenly divided. The Electoral Division is as deep as any kind in this country since the civil war. It is not a historical accident weve been experiencing political events weve not seen in more than 100 years. The last few years we have government shutdown, and unsuccessful and unnecessary president ial impeachment, a narrowly divided house of congress, a majority control the senate back and forth several times, we have the most hotly contested president ial election contest in a century. The Supreme Court is in a state of 54 opinions, including an important decision this week narrowly of opposing affirmativeaction. And most are medical ball was the court ruling less than three years ago, a ruling that determined the winner of a president ial election. What does it matter so much . Some of the courts recent decisions vividly show it. Patricia garrett, a nurse in alabama and mother of three. She was the director of Neonatal Services for the university of alabama. When she was diagnosed with Breast Cancer she took a leave of absence to undergo surgery and radiation treatment. Patricia garrett survived rest cancer. When she returned to work her employer refused to not only promote her, the employer demoted her. She sued in federal court under the americans with disabilities act. That was passed by overwhelming margins of the congress to defend the right of every american who suffers from a disabling illness. Former president bush signed it and considered it one of the proudest thing he did as the president. Alabama challenged that law is an infringement of its power. Decision chief4 Justice Rehnquist wrote congress acted beyond its power. The state could not be sued for damages in federal court. Discriminating against people with them disabilities. Just one of the five majority justices had gone the other way, states would be prevented from firing or demoting people at Patricia Garrett for getting cancer. And the key provisions of the americans with disabilities act been upheld. That case is part of a recent trend. A recent trend was now a majority of the Supreme Court restricts federal rights and protections. New legal theories are being promoted by country of dedicated conservative activists often an alliance of powerful wealthy special interests. Another such decision undermined environmental protection. The recent case these activists argued congress to not have authority to prevent the destruction of waters and wetlands that are part of a critical habitat for migratory birds. In that case another 54 decision, the Supreme Court called into question more than 80 years of president for the protection of migratory birds was indeed an Important National federal interest that congress could protect. They almost suggested migratory birds read roadmaps and stop at state lines. That sounds a little bit like John Grishams novel the pelican brief. All we have learned about the wetlands in the past century and the importance of federal andection of these areas, the efforts of people in both parties to get those protections. It is hard to believe a majority of the Supreme Court adoptee argument a very conservative activists in this area. After decades of practice and protection of such habitats by federal law a narrow majority of the Supreme Court decided the clean water act does not allow the army corps of engineers to protect nonnavigable waters from pollution or destruction. These are just a couple of examples at a beauty 160 isions of the december Supreme Court voted by a onevote margin since 1994. The the growing activism, number of important single issues is mounting. The last four years nearly 80 decisions were by onevote. Only 3000 out of decisions. The Supreme Court so closely divided, the replacement of just one judge could get the balance one way or another. Federal agencies regularly arsenic in our water, whether we can have diversity in media, fundamental protections to our privacy and liberty are to be narrower. All these matters and a lot of others will be subject to review by the Supreme Court. Do you want to know what is next state . Look no further than the decision to uphold the family medical leave act. Federal role played by what justice, Justice Oconnor, all of these are compelling reasons why a vacancy meets so much to all of us. It is also a compelling reason why the president and the senate should Work Together in deciding who is going to build such a role. Philip a summary who will divide us for somebody who will unite us . True consultation is in the best tradition of our republic. It is regrettable that with varying degrees of hubris and partisanship some of the administration is regarded consultation on just about everything has a four letter word. The constitution divides power between the president and the senate. It expects senators to advise the president. It says advise and consent, not nominate and rubberstamp. For most of the Constitutional Convention founders of this country signed the power to appoint judges exclusively to the senate. End a system of checks and balances within shared between the senate and the president. Shortly after William Eckley noted this in his famous journal. Whatever tensed her to the constitution of the United States will readily observed that it was an important one. No lesson has been the great change to regulate the balance of the government. The senates role is not secondary. Sentenceclearly on the power to advise and consent. The history of the whole nation. Im disappointed to see reports of the president is inclined to object are overture to head off of bitter fight. The president s spokesman was way off base when he turned the idea of a bipartisan consultation as a novel new when he suggested the consultation with senators before the Supreme Court nomination would somehow violate the constitution, that interpretation which raw 8 would draw a failing great for Many High School civics teacher in this country. Other president s consulted with the senate in choosing a Supreme Court nominee with good results. Recent history demonstrates the tradition and value of consultation. Some of the best evidence of this comes from a good friend of mine on the republican side. Back in 1993 when the last two vacancies rose in the Supreme Court, senator hatch had the same role i now have as Ranking Member on the Senate Judiciary committee. President clinton worked with senator hatch and republicans to chart a course for the selection of moderate nominees with substantial federal judicial experience. In his book, where pay, because of the president had the first opportunity in 26 years to nominate summoned to the Supreme Court and describes a president clinton consulted with senator hatch and talked about the various potential nominees he had. Senator hatch mentioned he brought up two names of people ultimately nominated. The proof is in the pudding. 96 senators voted in favor of Justice Ginsburgs nomination. 87tice breyer received votes. Senator hatch later committed commended president clinton for working with the minority defined Supreme Court nominees. That is the president which could be cited for decades before when others in our position. That is the role i want to follow. Senator arlen specter, widely respected on both sides of the aisle acknowledges the value of a president ial consultation in advance of a nomination. He has spoken about that. Details of senator bork, then chairman of the Judiciary Committee sitting down with Herbert Hoover and looking at names. Person was macon, one of the giants of the Supreme Court. Reagan administration consulted with Democratic Senators before the nominated robert bork. They consulted but they did not listen. [laughter] that emanation was voted down by the Senate Judiciary committee as reported to the senate with a right negative recommendation. It was ultimately defeated by a vote of it certainly makes good constitutional sense. Especially in this city, it makes good political sense when there is a partisan consultation, the Supreme Court battle can be avoided. On the other hand, if consultation is simply a phone call five mens before fox news announces the president s choice, that is not really cut it. Researchessional service has said plainly that it is common practice for president s to consult the senate Party Leaders as well as numbers of the Senate Judiciary committee before choosing a nominee. This is not a novel suggestion. This has been done throughout the history of this nation. The president choice unites and invigorates only a narrow wing of his party and ends up dividing the American People. Who should the president nominee be . Im not going to answer that question today. Thell harbor the whole leaderst deals with the where it would be most helpful. I can say this, other conservative republican president s have nominated justices to the court who have the kind of fidelity to the law we all respect. For example, republicans in the mold of Justice Lewis powell nominated by president nixon and do you know what the vote was with a heavily Democraticcontrolled Senate . 891 to confirm. These are people who understand the importance of the court to defend it and nevada be conservatives without being ideological activists and have a strong commitment to our Constitutional Values of liberty and equal protection. A demonstrated record of a commitment to equal rights, they have shown what Justice Oconnor has so often shown. Asking to make the nomination. That is up to the president. We are asking to let us do it in the manner that unites the country and does not divide it. Incite adent wants to confirmation battle, then he can choose someone because of their activismor record of and the expectation they will be a political nomination and bring about a political victory. Courte United States from should not be an arm of the Republican Party or the Democratic Party. It should be there for all of us. Activists have reported closely with president ial advisor advisor karl rove. A nominee to tilt the ideological balance of the Supreme Court they will not prevail without an extraordinarily difficult senate battle. And suppose they did prevail by one or two votes what have they given us . While partisans would celebrate the ideological takeover of the Supreme Court, the American People would be the losers. The legitimacy of the judiciary would have suffered a damaging blow and i guarantee they would not soon recover. Such a contest would confirm the Supreme Court is just another setting for partisan contests and partisan outcomes. That would ripple all the way down through the federal court and the independence and integrity the federal court shares today would be severely damaged. Preserving the court is important right now. This is not the time and a vacancy is not the setting to deepen the ideological divisions. Our constitution establishes an independent federal judiciary. Legitimacywark of against expansions of power. Independence of our federal court has been called the crown jewel of our judicial system. Independence is at great risk when any president takes back the court from any side of the political spectrum. Of course there is temptation to do that. Every president aces that temptation. John adams tried it. Franklin roosevelts packing scheme was not supported because they filibuster in the United States senate. No matter how great the temptation, one of the worst mistakes a president can make is to engineer the ideological takeover of the Supreme Court. If that was successful, it would lead to decisionmaking based on politics and would forever diminish our faith and our judicial system. All we are doing is trying to counsel the president to step back from the brink. In my lifetime, there has never been a grading a greater need for unifying pick on the Supreme Court. The independence of the federal judiciary is indivisible from our american ideal of justice for all. All americans, no matter our Party Affiliation should know we should expect and accept nothing less. Thank you. [applause] this one is less do aidating, knowing i can rendition of rocky top and bring the house down. From my andomething the experience. I have been a member of the Judiciary Committee since i was first elected to the senate. I probably served as its and served on everything from criminal law to patent and copyright protection. Today, im the subcommittee chairman on intellectual property and im sure if i were propertys intellectual that perhaps mr. Katz and a few of your profession ors would be on the edge of their seats. Given recent events, i have decided to share some of my experience with the judicial confirmation process. The Senate Judiciary committee is among the most partisan committees on capitol hill. It was not always this way and today, i will offer my thoughts on why the process has become so deeply political and what we can do to correct it. The bottom line is this. The process has become overtly partisan. Too many people want their judges to behave like politicians. When George Sutherland was nominated on december 5, 1922, the Judiciary Committee chairman was on the senate floor and after a few remarks made a motion to confirm the nomination. Promptly and unanimously agreed that was all it took. Compare that to the experience of judge roberts on the u. S. Court of appeals before he became the chief justice of the United States. He was originally appointed by the first president bush. That stalled and he was supported 10 years later by the second president bush. There is no doubt this man was qualified for the work. Everyone knows his resume, so i will not repeat it here. Nevertheless, before being confirmed to his seat, he answered approximately 100 extensive written questions from senators, mostly democrats. This effort to uncover his personal political reviews was completed again last month repeated again last month. Think Justice Scalia has hit it right on the nose. Paid explained, nobody much hed to the Supreme Court until its justices started acting like politicians. When they started acting like politicians, they certainly did getting treated like politicians. This is not good for our courts and not good for our country. The rules began to change with the nomination of judge robert worked to the court in 1987. Some of your professors are probably young enough that they may not remember this debate. I was there and i consider his treatment by Senate Opponents and organized Interest Groups to be shameful. There is no doubt judge bork was controversial and he did not shy from any controversy. During thereese last year, cspan ran hearings of past hearings and judge borks still stands out for the vigorous defense he made of his well reese well reasoned position. There is no doubt he had a conservative judicial philosophy. Was wronglylosophy painted as outside the mainstream of american jurisprudence. Similarany make assumptions about justices scalia and thomas. I do not know what stream these critics were navigating. Modeststitution protects look modest displays in the Public Square and is not create an unqualified right to sexual liberty. The mainstream views in Political Academy on the bench, we were caught flatfooted when it came to defending him. We did not anticipate the vigor with which opponents would criticize the selection process. We should have known better. Democrats in this majority party, like ronald reagan, i used to be a democrat. But in 1963, things began to change. I once said i used to be a democrat, but i learned how to read and write and became a republican. Day, every democrat in the state of utah was labeled as independent and unbelieving. The Democratic Coalition began to fracture. That is through the clinical process. As a result, the liberal wing of the Democratic Party has become for their judges legislating. There are many things they have been able to accomplish the courts that they never could have achieved through the legislature. Judges affirmed the constitutional right to burn the banned student led prayer before High School Football games and created the right to samesex marriage in state courts and returned a constitutional marriage preserving marriage in federal court. Their crowning achievement remains roe versus wade where they created the constitutional right to worship out of thin air. Most observant constitutional scholars in theory of the country said majority opinion lacks support. N a constitutional text he concluded it is bad constitutional law, however it is not constitutional law and gives no sense of trying to be. Number of other proabortion analysts have said the same thing John Hart Ely was not a conservative. He was a liberal defender of the war in court. In the case of gideon v wainwright, retiring the book gideons trumpet. He advocated the liberalization of abortion laws. As constitutional law, it remains a train wreck. Given the political reliance on the court, it is no surprise a political standard is now being nominees. Judicial it has become his or her willingness to deliver goods as opposed to delivering dispassionate just dispassionate judgment in moderation. Process began with judge bork. It continued with the nomination of Clarence Thomas where opponents inquired into the practices of the church at wish he at which he worship. This came to a head in president bushs Circuit Court nominee. Has led some to try to change the rules of the game. Filibusterwas the against 10 qualified nominees and a serious challenge to the constitutions balance of powers. Wasncerted strategy developed by my colleague from new york, senator schumer along with a number of activists. Through a series of hearings, senator schumer determined it was not sufficient to ask what a nominees qualifications were, whether a senator must determine whether they were eligible. They need to know how a person would a prochick case is a man would approach a case as a man or a woman and presumably the nominee was a more favorable reading to americans with disabilities act if she worked with disabled children. Obviously qualified nominee would become a no vote. When the democrats lost the majority, these potential no votes turned into filibusters. Were nominees unprecedented. There was only one time in the history where there may have i chattedibuster, but with senator robert griffin, author of the Landon Griffin bill through set they did not want to filibuster. There was no reason to filibuster. But this fight against these 10 qualified people was the last stop in the attempt to justify the judiciary. It would have given the senate on heard of power over nominations. Judges were primarily law enforcers rather than lawmakers. It was appropriate the president had the lead role. Those attempted to reassign the role of the judge to the lawmaking branch. This was not only constitutionally questionable, it was misguided and misleading and would the for either party to do this. Personsat will a deeply held personal views tell judgments . S or her Justice Scalia is deeply opposed to abortion as a moral matter, but Justice Scalia would never conclude a state that permits abortion violates the constitution. Personal views only matter if the nominee believes in given contemplation. That it also violates our separation of power. Is wrongactivism whether it comes from the left or the right. Extremes both want to have activist judges who an act their toals in the law and we have be careful of that. This goes to my second point, asking serious questions of judicial nominees. It is not enough to conclude he or she had a distinguished career. At the same time, a senator is not a rubber stamp if he or she refuses to inquire about personal views. What the nominee thinks of the judicial role the proper question is whether the nominee sees courts as the vanguard of social change within our constitutional system. A senator does not act as a rubber stamp by refusing to ask questions about future cases or policies whether he or she demonstrates respect for the judicial role by refraining from asking those questions. Robertssy judge reform performance was so remarkable. All of the us importance of judicial modesty. Have ado not to engage inl role political reform whether from the left or the right. They are to interpret the law means. E fidelity to its the importance of judicial modesty was understanding the debate of the Voting Rights act. Senator kennedy and i have been calling from the Judiciary Committee over the past 29 years. I have to say when he laid into judge roberts on the Voting Rights act, he was way off the mark on the role of judges in our democracy. Here is the bottom line on the Voting Rights act there is not one member of the United States senate who would oppose the authorization of the Voting Rights act. In 1982, the Voting Rights act was a war reauthorization. At that time, i was the chairman of the Judiciary Committee on the constitution and the issue was never over whether we should extend the Voting Rights act, which i consider the most important civil rights bill in history. In fact, the reagan administration, for which john roberts worked as a young attorney extended it without change for 25 years. The debate was over whether we should remain section two. Section five of the effects tests and applied to states that had been historically discriminating against africanamericans. What they wanted to do was apply the test and if the effects of what happened look like discrimination, even if there was no intention to discriminate, then it is discovered nation. Wanted to apply this. It proves to obstacles to minority candidates. Those election rules were neutral on their face and not enacted with the intention of diluting minority representation. They may have had the effect of doing so, so the argument was to put it in there. Eventually they were presented with a classic case of statutory interpretation. Did congress intend to ban intentional discrimination only merely the effect of diluting minority votes . Concluded inourt mobile that plaintiffs that challenge these electoral schemes must prove intentional discrimination. Then was to overturn the decision in the mobile case. I eventually supported the Voting Rights act, but i believe that this was a serious mistake. I fought against it. Changing these rules might result in more minority representatives but will not necessarily lead to better minority representation. I lost. Up for athe bill came vote, i voted for it. To be the most important civil rights enacted. I bring this up for a few reasons. When you hear what republican nominees who oppose civil rights, i think it is important to take these claims with a grain of salt. There is deep agreement on fundamental civil rights in this country. The violence against women act, and washelp to write the principal cosponsor of since it first became law in 1994 was just reauthorized in the senate by a unanimous vote stop not one person was against it. No objections on the Judiciary Committee which include some very conservative lawmakers. The importance of judicial modesty in constitutional cases when a majority in congress concluded that they got the Voting Rights act wrong, they clarified it to ordinary legislation. When it isu get wrong in a constitutional case . A vast majority of my colleagues in the house and senate believe the court did get it wrong when it concluded there was a hitherto unknown First Amendment right to desecrate the american flag. Yet to create that decision, we have to amend the constitution even though 48 states had antiflag desecration amendment. That is why it is so critical that judges have a respect for constitutional understanding of the American People. Some believe the Supreme Court should be the final arbiter of our most important social decisions. In their eyes, the court is not a modest institution but a super legislature. , important decisions must be taken out of the hands of the peoples represented. As a legislator, i find this insulting. It is out of step with our own history as a nation. Ron reagans transformation of the economy and embracing of entrepreneurship, the prosecution of world war i world war ii and the cold war and the war on terror all of these Landmark Events advanced the cause of liberty and equality. Notmited judiciary will undermine our founding commitment to liberty and equality. We seem to have forgotten something most of you heard in high school six class the legislature makes the law and the jewish very supports it. When interpreting it, we should do so with a modesty appropriate to the role. Alexander hamilton explains in the federalist papers that there is no liberty and the power have lost be we sight of this simple truth. Seen ashe judiciary is a way to get another bite at the federall apple in the or state legislature. For all of our disagreement, all to work onree nominations is among our most of work. To right question is not question what their views are, the right question is how they view their judicial role in our democratic system and process. Judge roberts had the right answer. He represents the law. In an insightful exchange, he explained this is why judges wear black. They are supposed to leave their personal and subjective views at the courthouse door. Put their they might thumb on the scale of justice. He was right to refuse to discuss his personal views or cases that might come before the court. He stood by the test laid out i none other than Ruth Bader Ginsburg and her confirmation hearings. She said a judge sworn to decide impartially can offer no and it would display his reign for the entire judicial process. Confirmation, Justice Ginsburg stood firm. She went on to say judge roberts was unquestionably right. My rule is i will not answer a question that attempts to project how i will rule on a case that comes for the court. We will have to see whether Justice Roberts example is a lasting one. He will be our chief justice for a long time. Learnominees and judges or will senators learn from this testimony that there are proper and improper inquiries of judicial nominees . We are about to find out quite quickly. Already, the senate is ready to take up the Harriet Miers nomination in just a few weeks. Already, some senators on both sides of the aisle are eager to determine her personal views. Learn shesatisfied to will take a modest approach to the role of unlike it judges in our democracy. Again, i want to thank you for having you be with your with me today. About a certain humility what i have said here today. Im certain i will be followed by many scholars more andinguished than myself while i am sure some of you have disagreed with what i have to say and im sure i will hear these disagreements in just a this froms, i do know my many years as service as a senator the American People have a wisdom that should not be disregarded in constitutional anticipation and we do a disservice to our political life. Thank you so much. Great to be with you. [applause] next to speeches include minority leader harry reid and defending the use of the filibuster, saying the senate has no constitutional obligation to vote. And this one from Mitch Mcconnell as minority leader in 2008, saying that democrats ought to confirm more bush nominees before the president leaves office. Here we have two speeches that seem at least somewhat at odds with what those two leaders are saying today. What is different back then and what does this tell us about the process as a whole . Whats what was different back then is quite simple. Each of these senators was one has the word minority and is now one has the word majority in his title and now has the word minority. What makes it dramatic is what it shows is in the last 30 era, whiche the bork is where these clips began, ideology has become an important , and aided government time of divided government, each judicial confirmation war is going to be fought to the death. The 2005 speech, when senator is ais speaking here, this was when bill frist threatening the Nuclear Option, which is a parliamentary maneuver to take away the right of the minority to filibuster. Senator reid was opposed to that. Later, itut a decade was senator reid who engineered this exact same Nuclear Option he fought so hard against. In the 2005 case, the Nuclear Option was diffused at the last senatorsen several from each party came together and said we are going to refuse to join filibusters from judges soeither president s choosing long as they are perceived as in the mainstream. Onlydeal held together for a few years and president obama came to power and harry reid had the chance and was frustrated by obama plus inability on the second court of appeal. That gang of 14 deal did not hold and the gang of 14 got its way. All of the video we are showing you here are these beaches from harry reid and Mitch Mcconnell. Senator reid i have addressed the senate on several occasions, setting the record straight on Senate History and the rules. Frankly, i would much rather address wage to cut health care costs, bring down gas prices, talk about education, the spiraling deficit we have, but the majority leaders decided we will spend this week and next week or at least part of next week talking about judges in the mainstream of american jurisprudence. I am happy to engage in this debate that i would rather not. I do want to debate to be accurate. For example, my good friend, the distinguished republican leader issued a Statement Last friday which he called the phyllis buster filibuster procedural gimmick. I set the record what the word gimmick means. The dictionary defines it as a new scheme. I indicated it filibuster was everything but that. It is not a gimmick, it is part of our nations history for two centuries. It is one of the file vital checks and balances established by our visionary founding fathers. It is not a gimmick. Also, some republicans have stated, have stated improperly the use of the filibuster. They have said time and time again that the defeat of a handful of president bushs nominees is on president. There have been hundreds of judicial nominees in American History that have been rejected by the senate, any by filibuster. There has been most notable, denomination of eight fortis filibuster in 1968. Here in the Washington Post is the same byline from many, many years ago. The first sentence, a full led republican filibuster broke out for the chief justice of United States. We have had filibusters. That is what has been disappointing to me with some of my colleagues saying there have not been filibusters. There has been. During the Clinton Administration more than 60 judicial nominees were bottled up and never received votes. Of course, as indicated by my distinguished friend, the republican leader, during that time democrats are complaining about what was going on, saying there should have been hearings in the senate, and even came to the floor and the majority leader said, lets have some votes. Lets have some votes on these people. Mr. President , we never said we would break the rules to change rules. To change the rules in the senate cannot be done by a simple majority. It can only be done if there is extended debate or 67 votes. I do not at all say that the statements made by Republican Leaders are wrong about the votes, and we were disturbed that they were not votes. We never ever suggested that rules should be broken. In addition to the socalled pocket filibusters called them when everyone, the 69 nominations, never made it out of the russell building, the Judiciary Committee. In addition to those performances, republicans engage in explicit filibusters on the floor against a number of clinton judges when they did get out and they defeated a number of the executive branch nominees by filibuster. It is the same advice and consent. That is why a republican filibuster, henry foster said it was unconstitutional. A democratic filibuster for the fifth circuit, unconstitutional. Why would the same not apply . The republican argument does not add up. I would say this to my friend, the per citing officer presiding officer. I have said, lets not dwell on what went on in the Clinton Administration, the four years that president bush has been president , i am sure there is plenty of blame to go around as we look back, i am not sure and it is difficult to say this, but i say it, im not sure either was handled properly. I know it was not the right thing to simply bury 69 nominations and in hindsight may be we could have done these differently. The American People are tired of what were doing. They are tired of the constant fighting going on. What is going to take place if this continues . We will have a vote sometime next week. It will be a close vote of course as we only need six republicans. A presiding officer that is former chairman of the appropriations committee, it is very difficult to get bills passed. Things will not work as well as they could have. We need to avoid this. We are all legislators. Y, now, f United States has become the latest to rewrite the constitution and reinvent reality. Republicans on tuesday night, two days ago, he said the senate has a duty to consider each nominee on the senate floor, discuss and debate their qualifications and get them a upper down vote. Everyone of the 10 he has spoken of has had a vote. Every one of them. Right here in the senate floor, people walked between these tables, their name was called and they voted. The radical right who see within the reach the destruction of american mainstream values, certainly not duty through the american constitution and for the American People that are waiting for progress, progress not partisanship and heady debates. Petty debates. Nowhere in the constitution does it say the senate needs to give nominees a vote. It says appointments should be made with the advice and appointment of the senate. All of these about which we are concerned has had a vote right here. The fact was even acknowledged that a vote is not required by the majority leader. The majority leader was here last week. He asked the majority leader if the constitution required each nominee an upanddown vote in the answer is no. He was candid. The language is not there, that is what the jenin said. He is correct. The present that is what the gentleman said. He is correct. It is clear that the president misunderstands the meaning of the advice of the consent clause. The word advice means consulting. As a result of this consulting, bill clinton brought with better ginsburg. Ruth bader ginsburg. The senate is not a rubber stamp for the executive branch. We are the one institution where the minority has a voice in the minority can check the power of the majority. In the face of president bushs power grab, it is more important than ever. Republicans want oneparty rule and this is the last place where they cannot have it all. Now president bush wants to destroy the check and balances to make sure he does get it all. Every senator can stand on behalf of the people who have sent them there and say their piece. In the senates 200 plus year of history this has been done hundreds and hundreds of times, standing up to popular president s, unpopular president s, president s arrogant with power, blocked legislation. In the eyes of the senator and yes, even to reject president ial nominations, even judicial nominations. Senator mcconnell this is the one Year Anniversary for the circuit judge. The nominee and judicial process is unhealthy and we said this congress would be different. The Los Angeles Times in the Washington Post acknowledged the president did his part to get the process off to a good start back at the beginning of this. They and many others complemented his good faith at not resubmitting Circuit Court nominees though some of our democratic colleagues did not like. The majority leader himself said how much he appreciated the president s good faith. He said, i personally want the record to reflect that i appreciate the president not send it back for names that were really controversial. The majority leader said he and his colleagues have an obligation to reciprocate and treat Circuit Court nominees fairly. He said, i think we need to reciprocate in a way that is appropriate and we are going to try to do that by looking at the nominees as quickly as we can. The question is, have the democrats treated these nominees fairly . Have they, in fact, reciprocated . Lets look at the facts. This president , in his final two years of office and the Senate Democrats hope to recapture the white house. Obviously, there is a partisan incentive not to confirm his judicial nominees. This has been it president s this has been a president s human nature. The situation is not it. President bush is not the first or the last. There is a historical fairness when confirming nominees. We agree that the senate should meet this standard. The average number of circuit Court Nominations is 17 in this situation. President clinton had 15. The senate has confirmed only 10 Circuit Court nominees. What happened . Unfortunately, old habits are hard to break, and in my opinion democrats on the Judiciary Academy this Committee Found it hard not to play politics. The judge was a distinguished state court judge and a iraq war veteran. He was someone whom Committee Democrats had already approved unanimously for the District Court, so at the beginning of this congress when the president tried it yet again to fill a vacancy on the fifth circuit, he did not resubmitting nominee that the democrats oppose, and he submitted someone they already approved. How did the democrats respond . With one exception, they did a total aboutface and try to filibuster the judges nomination. Unfortunately, the consensus nominee who became controversial. The senate has already approved the judge in North Carolina not once but twice. First is the chief federal Law Enforcement officer in North Carolina and then to a lifetime position on the Federal District court. In addition, the aviator gave judge conran a high rating and janet reno called him an excellent prosecutor and said she was impressed with his judgment and his knowledge of the law. Again, to resolve a dispute over a Fourth Circuit see, president bush did not reissue a nominee Senate Democrats oppose. He nominated someone who they already approved, judge robert conrad. Guess what has happened . Nothing has happened. As of today, judge conrad has been sitting in the committee for 365 days, one full year without a hearing even though he meets all of the chairmans criteria, has the highest possible aba rating, strong home state support and was still a judicial emergency. What is the result of all of that . While judge conrad waits in the committee, the Circuit Court is over 25 vacant. Over one fourth of its seats are empty. Its chief judge states that to keep up with its work, court must rely heavily on District Court judges, and it is robbing peter to pay paul. It goes without saying she says that having to use visiting judges puts a strain on our circuit and in particular, it forces the circuits district judges to perform double duty. The situation on the Fourth Circuit is so bad that the aba has made the crisis in its lead story. Its most recent addition of its professional turmoil on the cover page. The majority leader comes to the floor this morning and says judges are not important. No one cares about them. Given the crisis of the Fourth Circuit, the ava is highlighting it and i cannot imagine he would suggest such a thing. I am sure did millions of citizens think that having their court over 25 vacant does not matter. I am sure they care very much about that but evidently that is what the majority leader of believes and apparently he is not the only one in his congress who feels that way. The committee refuses to move judge conrads nomination or any other pending Fourth Circuit nomination. The democrats do not approve rosensteins nomination because he is doing too good of a job as u. S. Attorney. That is an interesting rationale for not moving someone. We have another Fourth Circuit nominee, judge glen conrad from virginia. He is a Federal District court judge whom the Senate Confirmed to the trial bench without any controversy. He has the support of both of his home state senators, one democrat and one republican. After he was nominated, the chairman said he would move them as long as it was time to do so. Specifically he stated, i have already said that once the paperwork on president bushs nomination on a judge glen conrad, if there is sufficient time i hope to move his termination. Well, the chairmans conditions are met with respect to judge glen conrads nomination. His paperwork has been ready for one month. It is only july the 17th. Last time i looked, there were 12 months in a year. It is july 17, clearly we have time to confirm him. Yet, we have no access on this nomination. Mr. President , our democratic colleagues talk about the for mineral confirm it rule confirment rule. I do not think this exist. It has been research thoroughly and there is no such role. This is just an excuse for our colleagues to run out the clock on qualified nominees who are waiting to fill needed vacancies. No party is without blame in the confirmation process, but what is going on now or accurately, what is not going on is yet another step backwards in politicizing the process we had all hoped we would get beyond. It is the American People, especially those in the five states that make up the Fourth Circuit who are suffering the consequences, and i am sorry the majority leader does not think that matters. I yield the floor. We have seen over the last couple of hours, the whole confirmation process, Supreme Court confirmation process, very partisan backandforth on the issue. What is your thought, your predictions for the Merrick Garland nomination and the process Going Forward . How do you see the next administration faring in the senate as well . I think the guy has been cast pretty solidly on judge garland. Mitch mcconnell has said, no way, no how will the Republican Senate so long as he is in charge have a hearing on Merrick Garland or vote on Merrick Garland. At one point, there seemed briefly to be the sense that they had talked about not doing it before the president ial election and then there was a brief rhetorical window where he said, maybe after the election if we lose the election, we would be happy to see Merrick Garland on the Supreme Court and out Mitch Mcconnell says no way on that. He is a practical man. He is more practical than ideological, and yet for whatever reason he concludes that going back on his very predictions is in his partys s political interest and things maybe change. I do not think that is likely. In the next administration will all depend on whether we have at present of one party in the senate of the other or if they are aligned. One thing you are reminded of, cannot help be reminded of when you watch this footage, it is always the senators and president s on the political losing end of debate that say lets reform ourselves, lets behave better in the future and it is always the folks on the winning side that use the power levers that has been developed over the last 30 years. David hawkins, we appreciate you speaking with us and we enjoy reading your book and her blog. I do so much. We will wrap up your with a couple comments by then senator barack obama on Supreme Court nominations in 2005 with his thoughts on how the white house on to handle onto to handle a Supreme Court nomination in the future. Senator obama let me congratulate the senators for moving the process, confirming the nomination of judge roberts along with such civility. Disability that speaks well of the senate. A civility that speaks well of the senate. I remain distressed that the white house, during this confirmation process, which overall went smoothly failed to provide critical documents as part of the record that could have provided us with a better basis to make our judgment with respect to the nomination. This white house continues to stymie efforts on part of the senate to do its job. I would hope that with the next nominee that comes up for the Supreme Court that the white house recognizes that in fact its duty, not just to the senate that to the American People is to make sure we can thoroughly and adequately evaluate the record of every single nominee that comes before us. Having said that, the decision with respect to judge robertsnomination has not been easy for me to make. I am not only a member of the university of chicago but have argued in Appellate Courts and taught courses in constitutional law. Part of the culture of university of Chicago Law School faculty is to maintain a sense of collegiality with people who hold different views. What engenders respect is the intellectual rigor and honesty of which he or she arrives at a decision. Given that background, i am sorely tempted to vote for judge roberts based on my studies of his resume, his conduct during the hearing and a conversation that i had with him yesterday afternoon. There is absolutely no doubt in my mind that judge roberts is qualified to serve on the highest court in the land. Moreover, he seems to have the temperament that makes for a good judge. He is humble, personally decent, and he appears to be respectful of different points of view. That is absolutely clear that judge roberts truly loves the law. He could not have achieved his excellent record, as an advocate for the Supreme Court without that passion for the law. It became apparent to me in our conversation that he does in fact deeply respect the basic precept that go into deciding 95 of the cases that, before the federal courts. A certain modesty in reading statutes and constitutional text, a respect for procedural regularity and in impartiality in presiding over our adversarial system. All of these characteristics make me want to vote for judge roberts. The problem that i face, the problem that has been voiced by my other colleagues, both those who are voting for mr. Roberts and those who are voting against mr. Roberts is that while adherents to Legal Precedents and rules will dispose of 95 of the cases that come before the courts, so that both scalia and a ginsburg will arrive at the same place most of the time on those 95 of the cases, what matters on the Supreme Court are the 5 of cases that are truly difficult. In those cases, adherence to precedents and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of ones deepest values, ones core concerns, ones broader perspective on how the world works and the depth and breath of ones empathy. Those 5 of really hard cases, the constitutional texts will not be directly on point. The language of a statute will not be perfect late clear. Legal process alone will not lead you to a rule or decision. In those circumstances, your decisions about whether action is appropriate to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control the reproduction, or whether the Commerce Clause empowers congress to speak on those issues of Broad National concern that may only relate to what is easily defined as innerstate commerce. In those difficult cases the critical ingredient is supplied by what is in the judges heart. I spoke to judge roberts about this, and he confessed it is not easy for him to talk about his values and his deeper feelings,