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tv   Issue Spotlight on Supreme Court Nominees  CSPAN  March 31, 2016 6:00pm-8:01pm EDT

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>> with american history tv it gives you that sper spectrometryive. it gives you that perspective on american history tv. >> i'm a c-span fan. >> president barack obama has nominated merrick garland, chief judge of the d.c. circuit court of appeals to fill the seat of antonin scalia on the supreme court. republican senators have vowed to block that nomination, saying the decision ought to be left to the next president. senate democrats have said there's plenty of time left in this year's senate session to hold hearings and floor debates on the president's nominee. over the next few hours here on c-span, we'll show you what some of the major figures at the center of today's debate have said in the past about the nomination animation process for the supreme court and lower courts including a summer, 1992 speech by then senator joe biden, which has received a lot of attention lately. we're going to start, though, with president barack obama in the rose garden a few weeks ago
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announcing the nomination of merrick garland. president barack obama: good morning. verybody please have a seat. of the many powers and responsibilities that the constitution vests in the few are more consequential than appointing a supreme court justice particularly one that succeeds justice scalia one of the most influential jurrists of our time. the men and women who sit on the supreme court are the final arbiters of american law. they safeguard our rights. they ensure that our system is one of laws and not men. they're charged with the essential task of applying principles put to paper more than two centuries ago to some of the most challenging
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questions of our time. so this is not a responsibility that i take lightly. the decision that requires me to set aside short-term expediency and narrow politics so as to maintain faith with our founders and perhaps more importantly with future generations. that's why over the past several weeks i've done my best to set up a rigorous and comprehensive process. i've sought the advice of republican and democratic members of congress. we've reached out to every member of the senate judiciary committee to constitutional scholars, to advocacy groups, to bar associations representing an array of interests and opinions from all across the spectrum. and today after completing this exhaustive process, i've made my decision. i've selected a nominee whose widely recognized not only as one of america's sharpest legal minds but someone who brings to
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his work a spirit of decency, modesty, integrity, even handedness, and ex-lenls. these qualities and his long commitment to public service have earned him the respect and admiration of leaders from both sides of the aisle. he will ultimately bring that same character to bear on the supreme court. an institution in which he is uniquely prepared to serve immediately. today i am nominating chief judge merrick bryan garland to join the supreme court. [applause] now, in law enforcement circles and in the legal community at
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large, judge garland needs no introduction. but i'd like to take a moment to introduce merrick to the american people. he was born and raised in land of lincoln, in my hometown of chicago and my home state of illinois. his mother volunteered in the community. his father ran a small business out of their home. inheriting that work ethic, merrick became valedictorian of his public high school. he earned a scholarship to harvard, where he graduated suma cum laude and graduated law school by working as a tutor, by stocking shoes in a shoe store, and in what is always a painful moment for any young man by selling his comic book collection. [laughter] been there. merrick graduated from harvard law and the early years of his
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early career bear all the traditional marks of excellence. he clerked for two of president eisenhower's judicial employees first for a legendary judge on the second circuit judge henry friendly and then for supreme court justice william brennan. following his clerkships, merrick joined a highly regarded law firm where the practice focused on litigation and pro bono representation of disadvantaged americans. within four years he earned a partnership. the dream of most lawyers. but in 1989 just months after that achievement, merrick made a highly unusual career decision. he walked away from a comfortable and lucrative law practice to return to public service. merrick accepted a low level job as a federal prosecutor in president george h.w. bush's administration, took a 50% a pay cut, traded in his elegant
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partner's office for a windowless closet that smelled of stale cigarette smoke. this is a time when crime here in washington had reached epidemic proportions and he wanted to help. he quickly made a name for himself going after corrupt politicians and violent criminals. his sterling record as a prosecutor led him to the justice department where he oversaw some of the most significant prosecutions in the 1990's including overseeing every aspect of the federal response to the lokse bombing. in the aftermath of the oklahoma city bombing act of terror when 168 people, many of them small commirn, were murdered, merrick had one evening to say good-bye to his own young daughters before he boarded a plane to oklahoma city and he would remain there for weeks. he worked side by side with first responders, rescue workers, local and federal law
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enforcement. he led the investigation and supervised the prosecution that brought timothy mcveigh to justice. but perhaps most important is the way he did it. throughout the process, merrick took pains to do everything by the book. when people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead. because merrick would take no chances that someone who murdered innocent americans might go free on a technicality. merrick also made a concerted effort to reach out to the victims and their families. updating them frequently on the case's progress. everywhere he went, he carried with him in his brief case the program from the memorial service with each of the victim's names inside, a constant, searing reminder of why he had to succeed.
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judge garland has often referred to his work on the oklahoma city case as, and i quote, "the most important thing i have ever done in my life." and through it all, he never lost touch with that community that he served. it's no surprise then that soon after his work in oklahoma city merrick was nominated to what's often called the second highest court in the land, the d.c. circuit court. during that process, during that confirmation process, he earned overwhelming bipartisan praise from senators and legal experts alike. republican senator oren hatch who was then chairman of the senate judiciary committee supported his nomination. back then he said, in all honesty i would like to see one person come to this floor and say one reason why merrick garland does not deserve this position.
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he actually cused fellow senate republicans trying to obstruct merrick's confirmation of laying politics with judges. he has since said judge garland would be a consensus nominee for the supre court who would be very well supported by all sides and there would be no question merrick would be confirmed with bipartisan support. ultimately merrick was confirmed to the d.c. circuit. the second highest court in the land. with votes from a majority of democrats and a majority of republicans. three years ago he was elevated to chief judge. and in his 19 years on the d.c. circuit, judge garland has brought his trademark diligence, compassion, and unwavering regard for the rule f law to his work. on a circuit court known for strong minded judges on both
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ends of the spectrum judge garland has earned a track record of building consensus as a thoughtful, fair minded judge who follows the law. he has shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide ranging judicial philosophies to sign on to his opinions. this record on the bench speaks i believe to judge garland's fundamental temperament, his insistence that all views eserve a respectful hearing. his habit to borrow a phrase from former justice john paul stevens of understanding before disagreeing and then disagreeing without being disgreeble. that speaks to his ability to persuade. to respond to the the concerns of others with sound evidence and air tight logic. as our current chief justice of
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the supreme court john roberts once said, any time judge garland disagrees, you know ou're in a difficult area. at the same time chief judge garland is more than just a brilliant legal mind. he is someone who has a keen understanding that justice is about more of an abstract legal theory, more than some footnote in a dusty case book. his life experience, his experience in places like oklahoma city informs his view that the law is more than an intellectual exercise. he understands the way law affects the daily reality of people's lives in a big, complicated democracy and in rapidly changing times. and throughout his jurisprudence runs a common thread, a dedication to protecting the basic rights of every american, a conviction that in a democracy powerful voices must not be allowed to rowned out the voices of every
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day americans. to find someone with such a long career of public service marked by complex and sensitive issues, to find someone who just about everyone not only respects but genuinely likes, that is rare. that speaks to merrick garland not just as a lawyer but as a man. people respect the way he treats others. his genuine courtesy and respect for his colleagues and those who come before his court. they admire his civic mindedness mentoring as clerks throughout his careers urging them to use their legal frame to serve their communities, setting his own example by tutoring a young student at a northeast d.c. elementary school each year for the past 18 years. they're moved by his deep devotion to his family. lynn, his wife of nearly 30
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years, and their two daughters, becky and jessica. as a family, they indulge their love of hiking and skiing and canoeing and their love of america by visiting our ational parks. people respect merrick's deep and abiding passion for protecting our most basic constitutional rights. it is a passion i'm told manifested itself at an early age and one story is indicative of this, notable. as valedictorian of his high school class e had to deliver a commencement address. the other student speaker spoke first and unleashed a fiery critique of the vietnam war. fearing the controversy that might result several parents decided to unplug the sound system and the rest of the student's speech was muffled. merrick didn't necessarily agree with the tobe of his classmate's -- tone of his classmate's remarks nor his
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choice of topics for that day but stirred by the sight of a fellow student's voice being silenced he tossed aside his prepared remarks and delivered instead on the spot a passionate, impromptu defense of our first amendment rights. it was the beginning of a life long career as a lawyer and a prosecutor and as a judge devoted to protecting the rights of others. he has done that work with decency and humanity and common sense and a common touch. i'm proud that he'll continue that work on our nation's highest court. i said i would take this process seriously and i did. i chose a serious man and exemplary judge, merrick garland. over my seven years as
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president in all my conversations with senators from both parties, in which i asked their views on qualified supreme court nominees, this includes the previous two seats that i had to fill, the one name that has come up repeatedly from republicans and democrats alike is merrick garland. now, i recognize that we haven erd the political season or perhaps these days it never ends. a political season that is even noisier and more volatile than usual. i know republicans will point to democrats who made it hard for republican presidents to get their nominees confirmed. and they're not wrong about that. there's been politics involved in nominations in the past, although it should be pointed out that in each of those instances democrats ultimately confirmed a nominee put forward
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by a republican president. i also know that because of justice scalia's out sized role on the court and in american law and the fact that americans are closely divided on a number it sues before the court, is tempting to make this confirmation process simply an extension of our divided politics. the squabbling that's going on in the news every day. but to go down that path would be wrong. t would be a betrayal of our best traditions. and a betrayal of the vision of our founding documents. at a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comedy are so often treated like they're disposable, this
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is precisely the time when we should play it straight and treat the process of appointing a supreme court justice with the seriousness and care it deserves. because our supreme court really is unique. it's supposed to be above politics. it has to be. and it should stay that way. to suggest that someone is qualified and respected as merrick garland doesn't even deserve a hearing, let alone an up or down vote to join an institution as important as our supreme court when two-thirds of americans believe otherwise, that would be unprecedented. to suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the american people, might be treated as one republican leader stated as a political
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pinata, that can't be right. tomorrow judge garland will travel to the hill to begin meeting with senators one-on-one. i simply ask republicans in the senate to give him a fair hearing. .nd then an up or down vote if you doesn't it might be an abdication of the senate's constitutional duty. it will indicate a process for nominating and confirming udges that is beyond repair. it will mean everything is subject to most partisan of politics. everything. it will provoke an endless cycle of more tit for tat and make it increasingly impossible to carry resident
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out their function. the reputation of the supreme court will inevitably suffer. faith in our justice system will inevitably suffer. our democracy will ultimately uffer as well. i have fulfilled my constitutional duty. now it's time for the senate to do theirs. presidents do not stop working in the final year of their term. neither should a senator. i know that tomorrow the senate will take a break and leave town on recess for two weeks. my ernest hope is that senators take that time to reflect on the importance of this process to our democracy. not what's expedient. not what's happening at the moment. what does this mean for our
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institutions? for our common life? the stakes, the consequences, the seriousness of the job we all swore an oath to do. and when they returned, i hope that they'll act in a bipartisan fashion. i hope they're fair. that's all. i hope they are fair. as they did when they confirmed merrick garland to the d.c. circuit, i ask that they confirm merrick garland now to the supreme court. so that he can take a seat in time to fully participate in its work f the american people this fall. he is the right man for the job. he deserves to be confirmed. i could not be prouder of the work that he has already done on behalf of the american people. he deserves our thanks and he
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deserves a fair hearing. and with that i'd like to invite judge garland to say a few words. [applause] judge garland: thank you, mr. president. this is the greatest honor of my life other than lynn agreeing to marry me 28 years ago. it's also the greatest gift i've ever received, except, and there is another caveat, the birth of our daughters jessie and becky. as my parents taught me by both words and deeds, a life of
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public service is as much a gift to the person who serves as it is to those he is serving. and for me there could be no higher public service than serving as a member of the united states supreme court. my family deserves much of the credit for the path that led me here. my grandparents left the pale of settlement at the border of western russia and eastern europe in the early 1900's, fleeing antisemitism, and hoping to make a better life for their children in america. they settled in the midwest, eventually making their way to chicago. there my father, who ran the smallest of small businesses from a room in our basement took me with him as he made the trounds his customers, always impressing upon me the importance of hard work and fair dealing. there my mother headed the local p.t.a. and school board and directed a volunteer
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services agency, all the while instilling in my sisters and me the understanding that service to the community is a responsibility above all others. even now my sisters honor that example by serving the children of their communities. i know that my mother is watching this on television and crying her eyes out. so are my sisters who have supported me in every step i've ever taken. i only wish that my father were here to see this today. i also wish that we hadn't told my older daughter to be so adventurous that she would be hiking in the mountains out of cell service range. [laughter] when the president called. it was the sense of responsibility to serve the community instilled by my parents that led me to leave my law firm to become a line
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prosecutor in 1989. there one of my first assignments was to assist in the prosecution of a violent gang that had come down to the district from new york, took over a public housing project, and terrorized the residents. the hardest job we faced was persuading mothers and grand mothers that if they testified we would be able to keep them safe. and convict the gang members. we succeeded only by convincing witnesses and victims that they could trust that the rule of law would prevail. years later when i went to oklahoma city to investigate the bombing of the federal building, i saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances and instead takes matters into his own hands. once again, i saw the importance of assuring victims
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and families that the justice system could work. we promised that we would find the perpetrators. that we would bring them to justice. and that we would do it in a way that honored the constitution. the people of oklahoma city gave us their trust and we did everything we could to live up to it. trust that justice will be done in our courts without prejudice or partisanship is what in a large part distinguishes this country from others. people must be confident that a judge's decisions are determined by the law and only the law. for a judge to be worthy of such trust he or she must be faithful to the constitution and to statutes passed by the congress. he or she must put aside his personal views or preferences and follow the law. not make it.
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fidelity to the constitution and the law has been the cornerstone of my professional life. it is the hallmark of the kind of judge i have tried to be for the past 18 years. if the senate sees fit to confirm me to the position for which i have been nominated today, i promise to continue on that course. mr. president, it's a great privilege to be nominated by a fellow chicagoan. i am grateful beyond words for the honor you have bestowed upon me. thank you. [applause] >> thank you. congratulations. ood job.
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>> joining us now to discuss the modern history of the supreme court confirmation process, david hawkings, senior editor of "roll call" and the editor of the hawkings here blog. the controversies of the supreme court nominees is nothing new but a lot of republicans are pointing to the nomination of robert bork back in 1987 as a turning point. the nomination came after the resignation of justice powell who was considered a moderate on the court. what was that period like and why are people still talking about that nomination today? >> one thing that makes it unusual by historic standards is that it was at a time of divided government and only recently divided government. the first six years ronald reagan was working with a republican senate but in the mid-term election of 1986 the democrats regained control of the senate.
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in 1986 there were two supreme court confirmations, justice william rehnquist was elevated to chief justice and actually 33 senators voted against that but it was contentious but not a knock down, drag down fight. and when rehnquist was elevated from an associate justice to a chief justice that was oat education when antonin scalia was nominated to essentially fill the associate justice spot. scalia as many people who recently recalled his career at his death was confirmed, 98-0. this all happened at a time when the republicans were running the senate, so it was no surprise that reagan's two nominees got through. the next year louis powell retired. the democrats had taken the senate back. and they were ready for a fight. and they had known that robert bork was coming. i mean, robert bork had been on the short list for a republican president supreme court nomination really since the
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1970's. robert bork had been assistant attorney general for richard nixon. he had been a solicitor general for richard nixon. he had been part of the so-called saturday night massacre during watergate when several senior people to him resigned and bork was acting as attorney general. as soon as reagan became president in 1981 one of his first judicial appointments to the d.c. circuit court of appeals was robert bork. so the democrats knew this was coming and they were prepared and they wasted no time at all. some people complained in the current situation that senator mcconnell waited less than a couple hours after antonin scalia died before staking out his claim to this nomination fight we're now in. in fact, senator edward kennedy went to the floor of the senate something like 45 minutes after bork was announced as the nominee and essentially said, we the democrats are going to go after this guy hammer and tongs. he is all wrong. he's out of the main stream. so the stage for the confrontation was definitely
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set. >> let's take a look. we'll go back to 1987 and show you what republican senators chuck grassley and mitch mcconnell had to say about the senate handling of the bork nomination. these speeches are from 1987. you can also find them in their entirety senator grassley: i would like to add my welcome to you and your family as you appear before this committee. i am eager to hear your views. it is often said, and i think correctly so, that one of the senate's most important functions is that of reviewing the president's nominations to the supreme court. i believe this important
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function has been demeaned. your nomination has been turned into a real life-and-death among the direct-mail giants of american lobbying. the intense lobbying has transformed this nomination into the legislative equivalent of a pork barrel water project, all strong-armed politics, no substance. the partisans who act as the generals in this war of mudslinging have had some .uccess in fact, some members of the senate have outflanked each other for the honor of taking the most extreme positions, even before the first day of the hearings. such positions are as intemperate as they are premature. it puts the judgment ahead of the inquiry, precisely the kind of closemindedness that some accuse this nominee of having.
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these remarks remind me of a famous passage in alice in wonderland where the queen of hearts said to alice, sentence first, verdict afterward. of 100am just one senators, but i just want to of thesehe outset hearings, that i found the proceedings of the past two months deplorable. this debate over a supreme court nominee would have come as a very big surprise to at least one of our constitution's founders, alexander hamilton. , theton was, of course first to articulate the vital power of judicial review. at the same time, he recognized that the judicial branch was to be the weakest of the three departments, and in his words, the judiciary was supposed to
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have neither force nor, only judgment. framers, such as hamilton, expected the choices among competing social values would be made by the people elected -- people's elected representatives, not by the unelected judiciary. during the summer of 1987, perhaps this furor only confirms how far the judiciary has drifted from its initial purpose in 1787. it is no exaggeration to say, especially in this year of the bicentennial constitution, that the existence of the constitution of america hinges on the capacity and willingness of the supreme court to the constitution consistent with its true intent.
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accordingly, it is our awesome responsibility to ensure as best a president's nominee to the supreme court possesses this capacity and willingness. beyond the mere resume of this nominee, outstanding as it may qualified to serve as a justice, in my view, unless he is willing to exercise self-restraint, self-restraint which enables him to accept the as his rulings are made and resist the attempts to revise that document according to what he thinks is good public policy. former chief justice stone identified this duty of the court when he remarked in 1936, an unconstitutional
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exercise of power by the executive and legislative branches of government is restraint,judicial the only check of our own exercise of power is our own sense of self-restraint." now, judges have no license to toy with the constitution as if it were their personal plaything, rather than the precious heritage of all americans. as justice frankfurter wrote in "nothingity opinion, new can be put into the constitution except through the .mendatory process nothing old can be taken out without that same process." unfortunately, a new generation of judges seems to have forgotten that they are appointed, not anointed.
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these judges have demonstrated an impatience with the democratic processes on which our nation was founded and under which it has flourished. instead, they would abuse the power of judicial review to impose their own view of wise public policy. they would prefer to act as kind ofts, who use some judicial alchemy to transform the words of the constitution to itsanings contrary plain reading or intent. i am unalterably opposed to this kind of judicial irrigation of legislative and executive .unctions i believe judges must give full effect to values that may be fairly discovered in the text, language, and history of the course,tion, and of
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apply them to modern conditions. but unelected and unaccountable judges should not freely overturn the legitimate policy choices of the equal, elect did -- elected branches solely because of personal preference. that is why the founding fathers such as alexander hamilton referred to the judiciary as the , and thaterous branch is what judicial restraint is all about. the nominee before us today has weighed in many times against the kind of judicial activism at tends to grant rights not granted in the constitution or the statutes. his view that judges should confine themselves to interpreting the law rather than advocating their own ideas of wise public policy is very appealing to me. i am anxious to hear more of these views, to see if they
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follow in the tradition of restraint practiced by frankfurter, homes, brandeis, stewart, powell, and a few others. along the way, i expect that opponents of this nominee will likely focus on specific views they disagreehat with. i urge my colleagues to keep on what i believe to be the real issue in this confirmation debate, and the real issue is the extent to respect the should decision-making of the respective legislative branches of government. make no mistake, the critics of this nominee know the law they prefer is judge made and susceptible tos change by other judges. they would prefer the law that is not found in the constitution or the statutes.
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if their views were found in the democratically elected law, they would have no fear of any new pledged to live by the credo of judicial restraint. instead, these critics prefer judges who will act as some kind , who'll legislature give them victories in the courts when they lose in the legislature. , i look forward to learning more about you from your own words in the next few .ays having identified my standard of review for this nomination, i would like to turn to a much and that is the senate's proper advise and consent role for this nomination. the senate's role has been a very limited one. the senate has not made a nominee's political philosophy
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the test for confirmation. it is universal knowledge that judicial nominees should not be asked to commit themselves on particular points of law in order to satisfy a senators politics. the usual advice and consent -- we are not attempting to determine whether or not the nominee agrees with all of us on each and every pressing social or legal issue of the day. indeed, if that were the test, no one could be passed by this committee, much less the full senate, or, as senator kennedy said at the same time, it is offensive to suggest that a potential justice of the supreme court must pass some supreme test of judicial philosophy. it is even more offensive to
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suggest that a potential justice must pass the litmus test of any single interest group. senator metzenbaum at the same time said, "i come to this hearing with no preconceived notions. if i have to disagree with you on any specific issue, it will in no way affect my judgment of your abilities to sit on the court." i might add that i very much agree with everyone of my colleagues in these statements on the senate's role. each of these views recognizes that the power to give advice is not the power to decide the issue. from george washington to ronald has enjoyed anate range of discretion in nominating supreme court justices, and the senate has
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deferred to the president's choice in all four choices. the senate should refuse only when the president's discretion has been abused. giving the president the last word without such deference would mean that the senate has the only word. this constitutional power the framers did not give to us. absence of constitutional power, raw political power can fill the vacuum. i will stipulate right now the power of a handful of my colleagues to block the nomination, but i believe it would be the wrong way to approach the duty. the dangers of politicizing the process are exceeded only by shortsightedness because, after all, presidential elections and supreme court nominations come and go. i urge my colleagues to resist
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the clarion call of raw politics that undermines the independent judiciary contemplated by article three of the constitution. in closing, if my colleagues cannot reuse -- resist the use of bald political power, i would at least hope that they would have the courage to shed the fig they hided which their real agenda. thank you, mr. chairman. i have been in public office for 28 years, and never have i seen on aan unjustified assault distinguished american citizen as i have witnessed these last few weeks. words are inadequate to express at the distortions i
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have heard in this room. , i watch thiso debate transform into the worst pressure politics i have ever seen. i spoke out then and hoped that unprincipled attacks on judge bork would end when he finally had an opportunity to speak. i underestimated the power of mob justice in america circa 1987. ago, i set out what i believed was to be a nonpolitical and principled standard for the confirmation of nominees to the supreme court. first and foremost, i have respect for the constitution as a precious inheritance for all americans.
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, full appreciation of the separate functions between the unelected judiciary and the political branches of government. lastly, self-restraint, which checks the well-intentioned urge to short-circuit government by the kind of restraint that jefferson spoke of when he warned of the unbridled third branch. to quote jefferson, our peculiar security is in the possession of a written constitution. let us not make it a blank paper by construction. the kind of restraint hamilton spoke of when he said in 1978 that the judiciary was beyond comparison, the weakest of three departments, having neither force nor will, but .erely judgment
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because he meets this principled standard for confirmation, robert bork has earned my vote. he is a person of unquestioned integrity. his credentials are, as one of our witnesses per day, solid gold. , togetherscholarship with his record on the bench, make him, in the chief justice's view, not mine, as qualified as any candidate who has served the supreme court in the last 50 years. is precisely the kind of person we need on the supreme court. perhaps that is why some sitting justices have taken the unprecedented step of recommending him. these qualifications should end given the senate's
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historical deference to advise and consent. since 1984, this body has only rejected for nominees to the supreme court by all the presidents. but that was before a new standard was minted just in time for this proceeding. now the senate's last word is it's only word. this rank politicizing of the supreme court nomination process can only bring this body into and will harmute the supreme court as well. of evil picture has been painted of this man after nearly three months? americans believe he is for poll taxes and literacy tests as a way to keep minorities from voting. some believe he would sterilize
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his fellow man if it suited the balance sheet of a big business firm. others believe he would single-handedly roll back the clock so that blacks in america would be banished to the back of the bus and women to the kitchen forever. he is even said to wink at the states installing cameras in the bedroom. after all, how else would we know if people are using contraceptives illegally? charges are unsurpassed in their ugliness. they are designed not to inform, but to inflame. to meat is so surprising about this litany of lies is that the people who help spread the hysteria actually know that they are lies. the ought to scare
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daylights out of every american, because as any wrongly accused person will tell you, it's a very tiresome and tedious process to disprove reckless allegations. i ask my fellow americans to consider how much tougher days when every special interest group with a photocopying machine repeats these lies week after week. some believe this nomination process has been useful. i disagree. judge bork has spent almost 30 hours before this committee. during that time, he was called on to answer questions that no judge should ever have to answer and no judge before him has ever answered. i believe it sets a dangerous standard and president to make nominees commit themselves to specific legal issues, whether
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it happens to be clear and present danger tests, a general right to privacy, or on and on. why? just to satisfy some senators politics. judges are not politicians. they be transformed into politicians. the framers of our constitution gave judges life tenure in part so they would be insulated from having to give campaign promises. it is inconceivable that the framers could have intended the ideological interrogation that we have seen over the past three weeks. i go again, giving weight to what the framers intended. i should know by now that the senate of 1980 seven deserves the right to amend the .onstitution on the fly the fact is that the real furor
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over this confirmation is judge bork's long-held view that legislators and those accountable to the people must make laws. as he put it three weeks ago -- and i want to quote judge bork, "the judge must be every bit as governed by law as is the congress, the president, the state governors and legislatures, and the american people. , cane, including a judge be above the law. -- above the law." to say that judges must follow the log rather than their personal bias is not to say that a crap diversion of liberty is the result. quite the contrary. declared the judges
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responsibility to discover the framers values, defined by the world they lived in an new, and apply them to the world we know. suggest this formula always yields an easy result or even a result that i will always agree with, but it is perfectly -- it is a perfectly respectable to grapple with tough issues that come before the court. a constitutionot that is worthless or somehow happens to be a worthless, dry , but it is, in fact, a .harter filled with vitality consider the expansion of the first amendment protection covering electronic media or the fourth amendment covering
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electronic surveillance. social changes mandated by a principle within the constitution or a statute, then the court has a legitimate war and to bring about an expand liberty -- warrant to bring expand liberty, asy a with bork said happened brown versus board of education, and properly so. when he states that when the constitution is absolutely silent, the democratically elected representatives of the .eople have a right to be heard fundamentally, and robert forex america, the people are in charge. the confident that we people will secure our liberties .ell as is often said, democracy may
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be the worst system of government, but it is better than any others devised by the minds of man. i have undying faith in democracy. tot is why i am honored serve the people of the great state of iowa, and that is why, support i am proud to robert bork for his seat on the supreme court of the united states. senator mcconnell: i had originally planned to speak at some length on this subject, as others have. i have been listening with interest to the comments from my alleagues, and it has been great history lesson to those of us charged with the advising andy of consenting the supreme court nominations. it's the 200th anniversary of the constitution.
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in looking at the particular portion of the constitution that applies to this exercise, i might say that we have been centered around this issue for quite some time. i have only been in the senate for two and a half years. but i have been dealing with supreme court nominees for 18 years, going back to 1969. period, i was a legislative assistant to a senator who was on the nominating committee. and we struggled than with what advice and consent meant as an idealistic -- meant. an idealistic young lawyer, i
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wrote an article that attempted to codify what seemed to be an ,ppropriate role for the senate bearing in mind that advice and consent on the one hand -- and as the constitution puts it in describing the president's responsibility -- said the bysident shall nominate, and and with the advice and consent of the senate shall appoint judges to the supreme court. advise and consent on one hand and nominate or a point on the other are not the same thing. the senate, obviously one of the most political bodies imaginable, has wrestled with that concept for 200 years, and , we haveccasions political raw exercises after which we have either approved or rejected
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nominees, and various senators on both sides of this issue have spoken and described those occasions at great length. in the 20th century, however, we have been a little more responsible, it could be argued, a little more inclined to differentiate between advise and consent on one hand and nominate or appoint on the other. we have made an effort to restrain ourselves, limit our angry. what i said in 1970 in a law journal article is that it was pretty clear that the majority of the senate had settled on the kinds ofng criteria as relevant to our inquiry to advising and consenting nominees to the supreme court. that time five criteria that are obviously appropriate, that no one could argue with. first, you want to make sure the nominee is competent. this is the supreme court we are
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talking about here, not the police court in hoboken, new jersey. clearly, we would want somebody who had great, distinguished achievement in his or her life. , clearly anperament thertant part of weighing credentials of any nominee to the supreme court, obviously something the supreme court should look at. conduct on the bench. finally, personal integrity. that's obviously something we should be looking for. in applying the standards to the riod, iorth-carswell pe concluded that judge haynesworth had erroneously been denied confirmation, but that judge
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carswell deserved to be seated, -- theg both standards same standards to both nominees. in those days, it was thought of that if you were against haynesworth, you are obviously against carswell. but applying the relatively objective standard to both nominees, it was clear that haynesworth should be confirmed and carswell should be defeated. unfortunately, both word defeated. -- were defeated. that was not this particular 's last experience with the supreme court. i came back to kentucky as a volunteer and helped with the nomination of william rehnquist i president nixon -- by president nixon to the supreme court. as a member of the judiciary committee last year, i participated in the nomination of justice rehnquist and justice
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scalia. i say all this to make the point that this senator has grappled with this issue for 18 years and given it a good deal of thought. , to howthe words mean they ought to be applied, and to what the role of the senate should be -- a devising and consenting. at until this bork episode, majority of these senators, at least in this century, have felt that advice and consent did imply some restraint, some .odification of the inquiry most senators have felt in this meant looking at the kinds of criteria i outlined
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earlier in looking at the competence of the nominee. one of the reasons we were reluctant to throw all that to outlined in an article from the law the review in 1983. the title of the article was "the transformation and senate response to supreme court nominations from reconstruction to the taft administration and beyond." relative -- the says when,ints, he ,s during reconstruction senators treat the supreme court as a political institution, that they expect to queue a particular ideological line, the public is likely to see the court in the same light, and so is the court itself.
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says perhaps more importantly, if unpopular supreme court decisions tend to lead to nasty confirmation controversies that put the court in an unfavorable light, then it is natural to expect that the court will render fewer such decisions. he goes on, the court is not primarily a policymaking institution, even to the extent it may be considered one. to maket allow it policy because it is politically accountable. on the contrary, it is the court's independence and at least the appearance of a production audi -- appearance of impartiality that we prize. the court is useful in our system of government, able to play a role distinct from those of the political branches because it isn't is perceived to be different from the other branches. if the distinctions blur, so
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will the role of the court. further in the article, friedman says, the senate is a political body. a large part of the senators job is or should be transformation of his beliefs or those of his constituents into public policy. easy for a senator to accept willingly the nomination of a justice who likely will act fs inary to those believe decisions deeply affecting the life of the nation, but for several reasons, a thoughtful senator should realize that any benefit from barring an ideological opponent from the court are not likely to outweigh the damage done to the courts institutional standard. he goes on, ideological opposition to a nominee from one is of the political spectrum
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likely to help generate similar in later generations from the opposite end. in the long run, the result will probably be to politicize the election process to shift the court either from the left to the right. opposing aason why supreme court nominee on ideological grounds is less beneficial than it might appear at the time is the difficulty in predicting the nominees judicial senators ownhe future assessment of that ideology. and this is quite interesting. one survey estimates that one r turned out to be quite different from what his appoint or wanted. the difficulty of prediction. not surprisingis
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then that the senators have sometimes expressed regret that they opposed the nomination of a justice whose record on the .ench they later approved this being so, a senator should have some humility in opposing x supreme court nomination on -- aogical grounds, supreme court nomination on ideological grounds. there is a strong possibility that he will later renew his actions. his actions. he goes on. there's a third reason a senator should resist the attempt nation to oppose the nomination on ideological grounds. the damage the justice can do is limited. is limited. we have heard a lot of dire predictions about how judge bork will remake america. agree with mr. freeman who says the damage the damage that justice can do is limited. often, of course, he may provide
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theucial fifth vote that reviewing senator might find harmful, but his vote counts no more than what his colleagues or the second choice appointee of the same president, something we will soon receive. the us, the senate is not likely to achieve much good by opposing a single nominee on the grounds that his votes and opinions would affect the nation adversely. he goes on. senators were to regularly vote against nominees with moderate but opposing views, the selection process would become unimaginably politicized and the appointment power which shift from the president to the senate. madam president, i ask that that aticle appear in the record
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this point. >> without objection. where areconnell: so, we? having thought about this issue, as i indicated, quite often for me,st 20 years, it seems to where we are, is that it's not that a body as political as this one is going to be able to render the kind of impartial judgments based upon the standards that the senator from kentucky laid out, standards like competence, achievement, temperament, judicial conduct, and personal integrity, and limit our inquiry to those items. the senator from kentucky thinks that's the way i amght to be -- but if
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nothing else, i am practical. having studied this issue, watched it, and looked at these years, ins for 18 thoseantly concluded that uttered by a rather idealistic 28-year-old lawyer are not likely to be honored in this body. it seems to me the only time we are inclined to restrain ourselves and to limit the inquiry to those kind of and when we get a noncontroversial nominee. whoever he is, sends up a nomination that is not very controversial, and we
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can stand up and preach to each how the advice and consent role means those five standards. but if the president sends up a controversial nomination, and that is what this one has certainly turned out to be, it seems to me that it is not likely that we are going to .estrain ourselves the opportunity to go for the political raw meat is just too great. so, i wish it were the way i set .t ought to be in 1970 it isn't. it seems to me we might as well except and adopt what the new standard really is. i do this with no particular bitterness, i might add, even it makes the article i
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was proud of 18 years ago dated, and some would argue it irrelevant. i am nevertheless prepared to say that i accept the new .tandard it's just asking too much of us to ignore the political implications of the night -- of a nominee to the supreme court. we are going to do it. we are going to do it when we want to and it's going to be presidenthe sends a someone we don't like. there are very few people who can limit their inquiry on that occasion to things like achievement, judicial temperament, and integrity. what we are going to be doing is finding a reason to oppose a nominee we object to on
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philosophical grounds. areit seems that where we is that advice and consent in 1987 with the defeat of judge robert bork means that for the majority of the united states we are going to make based on anything we to are please. if we make this based on political persuasion, that the president is trying to move the court to the right or the left, we will just stand up and say that, and vote accordingly. say i reach this conclusion, in summer respects, with a sense of relief. not to win thee presidency next year, i would a nominated supreme
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nominee to the supreme court might be of a persuasion that i would not prefer. and were i to continue to apply the standards that i penned in the kentucky law journal in 19 70, i would make a limited inquiry into that nominee based on his competence, conduct, and integrity. this senatorto that if nobody else was going to apply that kind of standard, then he shouldn't either. so, with no particular shouldess, i think we apply the new rule. in the new rule is that we will,
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in this body, consider all aspects of every nominee henceforth. and as far as my one vote is , i shall henceforth consider the judicial philosophy of the nominee as relevant to my inquiry in determining how i , and from robert bork forward, this senator from kentucky will consider the new established by the united states senate in this confirmation proceeding and apply it with some relief, as i , because afterer all, it is not easy for us to restrain ourselves, hold back, confine the inquiry
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to something as standardized and as trying to ensure that outstandingy members of the legal profession on the united states supreme court. conclusion, the words nominate and appoint give to the president the power of selection , but we interpret now advice and consent in this body broadly. and if we don't like the philosophical leaning of the henceforth, the majority of the senate will simply reject nominees on the philosophical basis.
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the danger of that approach, of course, is that it is a formula for gridlock, potentially. we could have it here. that's my prediction, madam president. the president is going to send us another nominee, someone not so well published, maybe 10 or , and we maynger waltz around this maple one more and it will be interesting to see what happens to the next conservative nominee in the united states senate. the standard going to be applied in the same way? ,t is a formula for gridlock but it is a bit of freedom for
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you to bus to do our own thing. we may not be able to pick the for each ofreedom us to do our own thing. we may not be able to pick the nominee, but we can shoot him down. we can sure shoot him down. have with regret that we reached this point, that judge , thoughso controversial in my judgment one of the outstanding nominations of this century. he would have ranked with brandeis, frankfurter and others . i suspect the president would have been disappointed in him on occasion. i doubt if he would've turned out exactly the way the .resident predicted had he served, i expect we might have heard from a number of senators who opposed him saying yes, he really surprised me. he ended up being better than i
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thought he was going to be. i made a mistake. much like we heard from numerous haynesworth.judge and speaking of judge haynesworth, if there is a parallel and thus, it is the haynesworth affect. effect. what did he do after he was defeated? did he go home and sulk? , he spent the rest of his professional career on the fourth circuit proving that his to track yours had made a -- detractors had made a mistake. to judge bork, you are an outstanding public servant. you have distinguished yourself on the court of appeals. i hope you will stay there.
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it is the second most important court in the land. the best way to deal with this crisis is to prove for the rest howour professional life wrong the decision of the united states senate was. so, to robert bork, who fought .he good fight you did your best. it was a tough contest. you happened to be the one who set the new standard that will be applied, in my judgment, by the majority of the senate. overtunately, it got set your dead body, so to speak, politically. day on the court, bob bork --
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stay on the court, bob bork, prove your can -- prove your detractors wrong. continue your outstanding career of public service. madam president, i yelled. >> we are -- i yield. we are back with david hawking's talking about the nominations of supreme court justices. republicans repeatedly cite the 1992 speech by joe biden in which he urged president george h w bush from making any nominees to the supreme court that summer should a vacancy occur. david hawking's, explain the , and whyor that speech the future vice president chose to speak at such length on that topic. of 1992, it was clear that bill clinton would be the
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nominee for president. george h.w. bush was running for reelection. ross perot was in the race and it was a highly unpredictable three-way race at that time. at that time also, there were two justices on the court, byron white in his 70's and harry blackburn in his 80's, and there either one orat both of them are going to retire the day after biden gave his speech. the supreme court goes home the last week in june. this was the last week in june. and biden, who was on the committee --he again, divided government, george h.w. bush was the president and democrats are in charge of the senate, the inverse of what we have today, joe biden goes to the judiciary floor and speaks for more than thatur, saying the words
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the republicans are now trying to hang around the obama administration's neck, which is that it's too late in the political season to be fair to the president or the nominee to give the nominee a fair hearing, , it would be wrong for george h.w. bush to continue in the trend of the reagan-bush years of nominating what biden describes as polarizing judges. when you watch this, you have to remember the context, and remember the role that people play and who is in control where at the time. this is a speech from joe biden in 1992. we are also going to show you his most recent comments on the
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supreme court nomination process. president, good morning. onpologize for trespassing the president's time in the senate. i have never sought to speak before the senate for as long as i seek to speak today. but the subject to which i speak is something i have given a and asked of thought the senate to spend some considerable time thinking about , and it is controversial, and in light of the fact that we are of the time that supreme court justices historically make decisions
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about whether they will stay on for another year, it seems somewhat propitious, although i seeksot of a justice who to resign. my speeches about reforming the confirmation process and the with regardew dawn to how we conduct ourselves relative to the confirmation involving supreme court nominees. seven years ago, harvard law professor lawrence tribe theected on what was then second oldest supreme court in history. a wrote -- and i quote -- great supreme court is sort of a in our comet constitutional universe, a rare and operation arriving only once in a lifetime. burning in the firmament for a brief time before returning to
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the deep space of constitutional history. added, the quiet time, in which there were just too supreme court nominations in 15 years were the calm before the constitutional storm that surely lies ahead, predicting that sometime in this decade we would be tossed into the turbulent process that has gripped this ,ation in the past and today after naming seven men to fill five vacancies on the supreme , wet in just five years find ourselves in the midst of the storm the professor forecast. , theese past five years united states senate has endured three of the most contentious in the history of the
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united states. the nomination of william rehnquist, who was confirmed by the most votes cast against him of any judge to the supreme to that point. the 1987 rejection of robert bork at the end of an epic conflict between competing constitutional visions, and the subsequent withdrawal of douglas ginsburg days after president reagan selected him to succeed bork as his nominee. this fierce fight, which none of us, i suspect, will ever forget in 1991 over clarence thomas's nomination to the court, which broke chief justice rehnquist's record for receiving the most negative votes in senate history. this change to the court over
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the last few years has already been dramatic. professor pointed out, there is every reason to see that we may see as many as five more justices retired within the next four years. stand likelihood then, we at the halfway point of the remaking of the supreme court. with as many coming controversies as we saw over the past two terms combined. by the time we arrive at the , thereection year, 1996 is a substantial chance that no member of the court serving on the court in june of 1986 will remain on the bench. replacement of the court in just 10 years has only one precedent since the court was permanently expanded to nine members over 100 years
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ago. today, as we stand at the midpoint of this dramatic change, i would like to discuss what has happened with respect to the supreme court nomination process. discuss whato should be done if a vacancy occurs this summer. offer for want to general proposals for how i believe the nomination and confirmation process should be changed for future nominations. but let me start with the confirmation process of the past decade. as i mentioned earlier, presidents reagan and bush have named eight nominees for six positions on the court during their presidential terms. this is not the first time in our history that a strong, ideological president and his
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loyal successor have combined to shape the court. washington and adams made 18 nominations, of which 14 were confirmed and served among the courts six justices. presidents lincoln and grant nominated 13 candidates, of whom nine were confirmed and served. and presidents roosevelt and truman named 13 justices, all confirmed in the combined terms in the white house. what distinguishes the reagan-bush justices from these historical parallels, however, is that half of them have been nominated in a time of a divided government. ofeach of these times, each these previous times, a sweeping, nationwide consensus bysted, as reflected political branches of
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like-minded individuals, which justified the sweeping changes that took place at the supreme court, but over the past two decades, no such consensus has existed, unlike the areas -- eras to which i just pointed. republicans have controlled the white house for 20 of 24 years. democrats have controlled the senate for 18 of those years. the public has not given either party and joe biden: in both our parties, should finally can honestly admit to that fact. both parties it honestly have conceded this fact. but neither have thus far.
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of course, this is not the first period where there is a requirement to fill the third branch of government. of all supreme court justices have been confirmed by senators of a party different om the present. one third of all justices confirmed since 1930 have been approved under these circumstances. controlled bye progressive republicans and democrats that confirmed three of resident hoovers for nominees for the court. -- president hoover's four nominees for the court. in these areas of divided government, mr. president, indeed, some periods where a president in the senate shared the same party, presidents commonly -- presidents commonly
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have taken the constitution at its word and asked for the advice as well as its consent. these presidents have consulted with the senate about their choices for the court and or chose nominees with ballots or diverse ideologies. the conservative republican hoover named conservative chief justice carles evan hughes but also names the moderate owen roberts and the liberal benjamin cardozo. the latter, benjamin cardozo, after a heated senate consultation. letter -- similarly, president eisenhower's choices for the court, including john harlan and charles winnick. moderates earl warren and william brennan.
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even president nixon, who showed no reluctance to take full advantage of presidential prerogative, balanced his choices of conservatives, or --ger and william rehnquist warren burger and william rehnquist with harry blackmun and lewis powell. this is not been the model the president reagan and bush have followed. in deed, even lacking the broad support for the vision which presidents washington and adams, lincoln and grant, and roosevelt and truman had, president reagan and bush have tried to recast the court in their ideological image. as these presidents did. notit another way, is it the first time that a tandem of presidents have re-sought to -- sought to remake the supreme
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court, or the first time a government has had to feel a number of seats in that the divided body? it is the first time both have been attempted simultaneously. elsehat more than anything has been at the root of the current controversy, surrounding the selection of supreme court justices. stress,o cope with this created by the decisions of presidents reagan and bush to move the court ideologically into a radical new direction, which this country does not support. it was to cope with this stress that the modern confirmation process was created. and on this point, there should be no doubt and no uncertainty. bush uses reagan and the supreme court nominating process in a. of -- in a period of government
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divided is without parallel in our history. it is this power grab that has unleashed a powerful diverse force grabbing -- ravishing the confirmation process. the american people are dissatisfied with where they find the process today. they must understand where the discord that has come to characterize it began. but presidents reagan and bush in their decision to seek power and the nominating process of the radical right within their administrations. it was in the face of this unprecedented challenge of the supreme court nomination process that we in the senate developed an unprecedented confirmation process. the centerpiece of this new process was a frank recognition of the legitimacy of senate consideration of the nominee's judicial philosophy as part of the confirmation review, and
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unanimously, previous speeches i made to look at and the obligation to look at the ideological -- the ideology of the person being inserted in the record. when i set forth in this motion during a board confirmation debate, it was a widely controversial motion. we as well as the president had a right to look at ideology. reaffirmedly works by recent articles of professor david strauss and cast hosting -- kass hosteen, have always found a solid basis for this view as the framers and the history of the nation. the review of the ideology has been truthful. theave quashed the myth senate must defer to a presidents choice of a supreme court justice. the men and women at the apex of --ependent third grudge
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branch of government. the role of the senate as the vital partner in reviewing supreme court nominations has been enhanced. the debate over this role cause even those who were initially professorlike breas henry morgan who outlined the rules for conversion to join in the broad consensus over my piety -- propriety over more active senate participation in the process. more fundamentally, mr. president, a series of profound debates that the board nomation sparked were among discussions of the institution, its meaning, and the supreme court in this century. before the board confirmation fight, the legacy of the warren court was seen as tenuous by
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scholars and ill supported by the public. thought that the judicial activism was a rallying cry that would move americans. against the protection of freedoms, it is one person, one person vote doctrine, and of the progressive decisions, the legal right thought it had no popular support and less legal foundation. in the legal left, prior to the board fight, standing at the correct in this assessment. a popular opinion. that is if the warren court makes a decision to renounce popular supported. but the public reaction to judge earn's views, its rejection of the legal philosophy and notions, proved just the opposite. while some aspect of the warren
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decisions remained under assault, particularly in the area of criminal law, others have been revocably secured in the heart and minds of americans, such as the remission for the right to privacy. that if you recall, mr. president, prior to the board fight, right, and ideological right that was not supported by americans. this could not have been said before the board confirmation fight, and yet it can be safely proclaimed today that americans, americans strongly support the right to privacy. and find that there is such a right protected in the constitution. nor do i limit the success of this process of the boards rejection only. i uniquely satisfied that for
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different reasons as to how the process functioned in approving justices kennedy and souter. is one whom i would have chosen had i been president. but each reflects a balanced selection, a non-ideological conservative that stands between the white house philosophy in the senate's. i might go back to the decision yesterday on school prayer. it is prayer before complications at public schools. justices souter and kennedy took a position, diametrically that has beent proffered by this administration and the previous one for the past 11 years. while i have disagreed with some of the decisions by these two jurists, i know that president
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bush must say the same thing. that he disagrees with some of the decisions of the two men, kennedy and souter. i offer them as examples, mr. men vicious of opinions that are sharply reject, but during a period of divided government, both of the sort of compromise candidates who are appropriate for the court and whose confirmations i supported. in my view, the contemporary confirmation process functioned well in rejecting judge bork and approve his justices kennedy and souter. in so succeeding, one can see within the process and explosion that was to calm with the promise nominations -- was to calm with the promised nominations. ofi said earlier, the root
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the collapse of the confirmation process is the administration's campaign to make a supreme court an agent of an ultra-right served the -- conservative socialist agenda which lacks support in congress and the country. i will just point out again, mr. president, the entire socialist agenda of the reagan administration has yet to gain a majority support in the united states senate or the united states house of representatives, or among the uni people over the past 11 years. , butbility to do that presidents have concluded and did conclude that the avenue to that change was to remake the court. as i am to how the results and reactions are by different forces and factions have brought about the difficulty we now face, i don't want anyone to lose sight of the fact that it is the administration's nomination
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agenda that is the root cause of this dilemma. that is, if you will, the original sin, which has created all the problems which plagued the process today. the administration's desire to placate the right wing of its party, which is driven by a single issue, overturning roe v. wade. republicaners of the faction, no mere conservatives such as justices o'connor or powell is safe to use the word they often use. the of ministration is urged to reach for scalia, thomas. if this is the original sin behind today's woes, it is not the only cause of the confirmation deadlock. and here, there are three consequences of the reagan-bush nomination strategy which have been treated to the problem.
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and moderateats republicans have played into the hands of the republican right by accepting roe as the divining rod in reverse. views ornominee's refusal to state views on this question, the overriding concern in the confirmation process. permitting a single issue to dunamis -- to dominate the debate, they have lost sight of the fact that nominees are chosen by republicans, over conservatives. otheran have jurisdictional views other than abortion, but at the far end of the spectrum. to put it another way, the center and the left, which had broad public support or the public decision against judge bork, have allow them to feel defined as a single issue
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participants. this has given rise to even more frustration about the process from both participants and observers. with one cause for the schism that emerged in the thomas confirmation debate. moreover, the focus on roe prevents the committee from exploring legitimate issues because questions about the nominees of use on many matters from the cutting is issue of the right to privacy to the age-old are immediately assumed by all of those observed the process to be covert questions about abortion when they have nothing to do with abortion. among the most frustrating aspects of the souter and thomas hearings was when i try to question the nominees on whether they thought individuals had a right to privacy. everyone, the press, the public,
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the nominees, my colleagues, thought that i was trying to ask about abortion in disguise. no matter how many things i said, truthfully and frankly, and i quote, no, forget about abortion. you will face many unknown questions that will confront the court in the 21st century, i must know whether or not you think individuals have a right to privacy. ". quote. no matter how many times i insisted, everyone believed i was talking about abortion. that is how powerfully the issue permeates our process. and during the bork and thomas nominations, there developed what could be called an unintended conspiracy of extremism between the right and the left to undermine the confirmation process and question the legitimacy of its
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outcome. simply put, the right to could not accept that any process which resulted in the rejection of george bork -- judge bork was fair and legitimate. notwithstanding, the oftemporaries declaration many republican senators at the hearing and the process for handling the bork nomination were fair, a subsequent mythology is developed that claims other ways. we are told the hearings were tilted against the bork. but there were more witnesses that testified for him then the opposition. onave heard to be blamed scheduling the witnesses. recently alternated pro-con, pro-con. power after panel. the list of excuses goes on and on. with the camera angle, they said. the bearded, the light, the timing. all unfair. all engaged in by those who
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oppose bork to bring him down. and some, the conservative ring in the republican party is never accepted the cold, hard fact that the senate rejected joint bork because his views came to be well understood and considered unacceptable. and because this rejection, because of -- excuse me, because of this rejection of their core philosophy is inconceivable to the legal right, they have been ains hunt for vil ever since. they have attacked the press as in a recent tempered speech by , newrvative federal judge york times reporters, among the finest supreme court covered hearings. but most of all, these movement
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conservatives have attacked the confirmation practice it self and the senate for exercising its constitutional duties to conduct it. duties tostitutional conduct it. at the same time, the left has frustration with the inability to persuade the american people of the intelligence of the agenda in the confirmation process as well. factrefuse to accept the that when one political branch is controlled by conservative republicans and the other has its philosophical fulcrum resting on key seven democrats , in thosen democrats circumstances, it is inevitable the court is going to grow more conservative. --epting candidates acceptable candidates must be founded on those who'd straddle the ideological goal, like justices kennedy and souter, who
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were approved by combined total of 188-nine in the senate. the last, mr. president, is frustrated, because a conservative president and the senate where the fulcrum is held by southern democrats is not going to nominate justice brennan. he was a great justice and should find people to replace him and ideology. they refuse to accept reality, mr. president. chances are right. accept the to reality of a bork defeat. he was defeated because of his views. when you got america should was different -- what he thought america should become. what the vast majority of americans, a majority of senators. it had not a wit to do with whether or not he had a beard, a camera angle, and added by an
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outside group, or the order of witnesses. president, the confirmation has become a convenient scapegoat for ideological advocates of competing social ventures. advocates who have not been able to persuade the generally moderate american public of the wisdom of either of their views when framed in the extreme. president,hen, mr. the design advocates have joined in an ad hoc alliance, extreme right, extreme left, to undermine public confidence in , whichcess, in a process is aimed at moderation. hoping perhaps to ferment a great social war in which one or the other will prevail. presidentproblem, mr. , the confirmation process has
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by the general meanness and nastiness that pervades our political process today. what i believe, they played little or no role in the outcome. in the television ads that were run against judge bork's confirmation only target increasingly cutting responses from the right. the thomas nominations included a level of senators that maybe typical of modern local campaigns but is destructive to any campaign on the consensus as is the confirmation process. after the nomination was announced, one opponent of judge thomas outside the senate threatened to bork him, a menacing play that serves no purpose. as the hearings were about to begin, the same conservative the willie horton
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ads, ran commercials, attacked members of the judiciary committee including myself. with the intent to intimidate as they so stated, intimidate review of the nomination. i find ironic, mr. president, that we can recognize the cause if not find the answers for this nastiness in the context of presidential elections, but lack the same insight to respect the confirmation process. many the same voices have criticized the committee for not going hard enough every allegations that judge thomas had improper travel expenses spitefully transferred a whistleblower at eeoc, or was friends with a fellow part lobbyist. many critics of a committee are among the first to say that presidential campaigns in 1992 been dominated by questions of
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personal wrongdoing instead of quote, the real issues. believe the nation would be better off if the current campaign was centered on disputes over public policy rather than gossip about marital fidelity or marijuana use. but i must say that the same is true about the review of the supreme court nominee. the nation is enriched them explore their jurisprudential views. base in my view woman plow through their private lives or dirt. -- when we plow through their private lives for dirt. it is too often focused on coverage of supreme court nominees, focused on supreme court nominees on such gossip and personal matters rather than on the substantial a difficult
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task of trying to discern their philosophy and ideology, because it is their philosophy and ideology that will affect how i am able to live my life. how my children will be able to live their lives. when theyer or not are 17 years old, they smoked marijuana, or anything else. but me make it clear, mr. president, i am not speaking on professor hill's allegation on judge thomas, which we are certainly serious is significant enough to merit the full investigation the committee conducted both before and after the public enclosure. rather, i'm speaking of numerous lesser allegation against nominees, bork, kennedy, souter, thomas with the committee critics saying we have done too little to pursue. each time the airing of these
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charges, enraged republican nominees allies, they consider it unfair to the right of privacy, each time with committee at my direction refuses the rumors, the more extreme critics grew more and more frustrated with the results . this was another tension which came to be heard during the thomas nomination and exploded when professor hill's charges were made public. to sum it up then, the proclamation process -- confirmation process launched in 1987, which was an attempt to divide a means for dealing -- provide a means for dealing with the supreme court ideological at the time, when their use life public support. -- lacked public support. this process began in 1987 to do sllies this has -- dualize thi
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has been torn asunder. has been slowly eroded by the criticism it has received from both liberal and conservative ideologies. a legitimate process that was built in good faith to identifying and confirming consensus nominees has been destroyed by many of the same corrosive influences that has so demonstrated presidential policies and national dialogue and public affairs. consequently, it is my view that particularly, if the reality of a divided government during a time of great change of the court continues in the next administration, future confirmation must be conducted differently than the preceding one. mr. president, the pressures and tensions on the existing process
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which exploded during the thomas nomination fight make a restoration of what came before ion, evenmas' nominat if it was desirable, a practical impossibility. having said that, mr. president, we face one immediate question: can the senate, so wracked by discord and bitterness, the repaired in a presidential election year? mr. president, history teaches us that this is extremely unlikely. some of our nation's most bitter and heated confirmation fights have come in presidential election years. fight overnfirmation roger tanis nomination -- tawn senatemination, the
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failed to confirm for nominations by president tyler in 1844. badger and black by lame-duck president fillmore and buchanan in the mid-19th century. and the narrow approval of justices lamarr and fuller in 1888. some examples of these fights in the 19th century. overall, only one in four supreme court nominations have been the subject of significant opposition. the figure raises to one out of two when such nominations are acted on in presidential election years. in our century, there are two particularly poignant cases. the 1916 confirmation fight over louis d brandeis, one of
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america's greatest jurists, a fight filled with mean-spirited, anti-somatic attacks on the anti-semetic- on the nominee shows this. an assault launched by 19 republican senators before president johnson had even named fortis as his selection is similarly well-known by all who follow this. indeed, many pundits on both the left and the right question our committee's ability to fairly process the bork nomination a year before the 1988 campaign without becoming entangled in presidential politics. i believe there is concern with misplaced and ultimately
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disproven. it shows how fears of such polarizationn -- undermines this. and acting in a presidential year is particularly strong when the vacancy occurs in the summer or the fall of the election season. while a few justices have been confirmed in the summer or the fall, such confirmations are rare. only five times in our history, mr. president, have summer or fall operations been granted, -- confirmations been granted, with the latest of august 1846. a confirmation of justice robert greer. in fact, no justice have been confirmed in september or october of an election


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