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 Poli