Senator Mc Connell on Supreme Court Nominee CSPAN February 14, 2017 5:06am-5:22am EST
now, one final matter. when president clinton took office in 1993 he named his first nominee to the supreme court ruth bader ginsburg. ginsburg's nomination was not without controversy. she had argued for positions that are still quite controversial today. for example, she had questioned the constitutionality of laws against bigamy because they implicated private relationships. for the same reason she had opined that there might be a constitutional right to
prostitution. she had also advocated for coeducational prisons and juvenile facilities. she had even opposed -- she had even proposed abolishing mother's day. so you can understand why senators wanted to get her views on issues that might come before her as a justice. but when pressed at her confirmation hearing, here's what she had to say. "you're well aware that i came to this proceeding to be judged as a judge, not as an advocate, because i am and hope to continue to be a judge, it would be wrong for me to say or preview in legislative chamber how i would cast my vote on questions the supreme court may be called upon to decide. were i to rehearse here what i would say and how i would reason on such questions, i would act injudiciously. judges in our system are bound
to decide concrete cases, not abstract issues. a judge sworn to decide impartially can offer no forecast, no hints for that would show not only disregard for the specifics after particular case it would display disdain for the entire judicial process." so summing it up, mr. president, she said no hints, no forecasts, no previews, and that is what has become known as the ginsburg standard. supreme court nominees of presidents of both parties have adhered to it. for example, president clinton's second nominee stephen breyer noted that there's nothing more important to a judge than to have an open mind and to listen carefully to arguments. so he told the judiciary committee he did not want to predict or commit myself on an
open issue that i feel is going to come up in the court. that meant, he said, not discussing how a right applies, where it applies, and under what circumstances it applies. now when his nomination to be chief justice was pending, john roberts said that adhering to the principle embodied in the ginsburg standard is of great importance not only to potential judges but to judges, which most nominees to the supreme court already are. we're sense tirvetion he said, to the need to maintain independence and integrity of the court. let me repeat that. the chief justice said, this principle was necessary to maintain the independence and integrity of the court. he then explained how the
ginsburg standard helps maintain that independence. nominees, he said, go on the court not as a delegate from the judiciary committee with certain commitments laid out in how they're going to approach cases. rather, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented, and the rule of law. and the litigants before them, he concluded, have a right to expect that and to have the appearance of that as well. that has been the approach that all of the justices have taken. now, at the time, my colleague from new york and other senate democrats were upset that chief justice -- that the chief justice followed justice ginsburg's approach. even though many of them didn't complain when she refused to preview or prejudge legal issues during her confirmation hearing.
but guess who came to the chief justice's defense? justice ginsburg. she felt compelled to depart from protocol and weigh in on the matter. she said, judge roberts was unquestionably right in refusing to preview or prejudge legal issues at his confirmation hearing. both of president obama's nominees adhered to the ginsburg standard as well. his first nominee sonia sotomayor explained that what her experience on the trial court and appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. it's the process, she continued, of not coming to a decision with a prejudgment ever of an outcome. that process, she said, applied not only to the cases that would come before her on the supreme court if she were confirmed but
that could come before her in her then current capacity as a circuit court judge. now most senators of both parties have respected the ginsburg standard. for example, during her hearing, senator leahy told justice ginsburg that he certainly didn't want her to have to lay out a test here in the abstract which might determine what her vote or her test would be in a case she had yet to see that may welcome before the court. and even my friend from new york has recognized the ginsburg standard is a -- quote -- "grand tradition." but the far left has been pushing my counterpart and other senate democrats to oppose anyone -- anyone -- whom the president nominates to the supreme court.
so the ginsburg standard has given way to the doubled standard. the double standard. my prendz -- my friend from new york now says that the supreme court nominee has to pass some special test -- some special test. to show his judicial independence. he says judges gorsuch, a highly respected, experienced jurist, must preview his approach or even prejudge legal issues that could come before him, like whether the president's executive order on refugee vetting is constitutional. this is clearly an effort to get judge gorsuch to prejudge not only -- not on a matter that could be in the federal courts but to prejudge on a matter that is in the federal courts right now. right now. senator schumer is not alone in wanting to replace the ginsburg standard with a new double standard.
his colleague, who serves on the judiciary committee, the senior senator from connecticut, also says that judge gorsuch for the first time with supreme court nominees has some special obligation -- some special obligation -- to give his views on specific issues, without the benefit of the judicial process that justice sotomayor noted was so important. under our colleague's approach, there's no need to preview the record in the case, no need to do any legal research, no need to hear the best arguments from each side, no need to deliberate with your colleagues on the bench to arrive at a correct result. nope -- nope -- just give a dry-by legal conclusion on a consequential matter of constitutional law. now, mr. president, let's be
clear about what's going on here. this new special test and special obligation aren't about ensuring judge gorsuch judicial independence. they're about compromising it. our friends on the other sued of the aisle want to constrain his ability to rule in a later case according to the facts and the law beholding him to what he said in their meeting or under oath at his hearing. so in the upside down world of my democratic friends, judge gorsuch must lose his judicial independence, both as a sitting circuit court judge and as a future supreme court justice, in order to prove his judicial independence. as justice ginsburg and justice
breyer and justice sotomayor all noted, the process of judge something about having an open mind, seeing what the facts are in a particular case, hearing the arctics on both sides -- arguments on both sides and making what the judge believes is the correct ruling according to the law. it's not about a judge having himself in before a legislative body by previewing how he would view a legal issue. or as senator leahy noted, announcing the legal test he might apply it a particular case. -- in a particular case. it's definitely not about that judge saying whether something in the abstract is constitutional. so, mr. president, under this double standard, senators must respect the need for judicial independence of the supreme court nominees of democratic
presidents, even when those nominees espouse views that are far, far outside the mainstream, like suggesting there is a constitutional right to prostitution or urging the abolition of mother's day, but under this double standard, senators can compromise the judicial independence of clearly mainstream supreme court nominees of republican presidents even when those nominees are, like judge gorsuch, well-known proponents of maintaining judicial independence, who have a long record on the issue. and that's not just my view of judge gorsuch's commitment to judicial independence, by the way. that's according to prominent democratic lawyers like president obama's top litigator in the supreme court.
this democratic double standard, though, is not surprising. recall that the democratic leader said that he was prepared to keep justice consoli leah's -- scalia's seat open for four years, four years. that was made difficult by the nomination of an outstanding candidate like judge gorsuch. so our colleague came up with a new supermajority standard for his confirmation, a sthanders that -- a standard that didn't exist for seven of the eight justices currently on the court. a fact my friend later had to admit. the democratic double standard on required nominees to prejudge issues is just the latest attempt to come up with something, with anything -- anything -- to justify opposing an exceptional nominee like judge gorsuch. judge gorsuch is one of the most impressive, most highly
qualified nominees to come before us ever. he's won kudos from across the political specter. even the top democrat on the judiciary committee couldn't help but prays hi -- but praise him. our new president has nominated a thoughtful jurist. democrats are viewing this nominee as a political problem. their base is demanding total resistance to everything, but they can't find a good reason to oppose judge gorsuch on the merits. they're in a pickle, mr. president. so we have this attempt to replace the bipartisan ginsburg standard with the double standard. i understand the difficulty of their situation. but the standard we're going to follow with this nominee is the same one -- the same one we