Energy Policy Act of 2005

ENERGY POLICY ACT OF 2005 -- (Senate - June 23, 2005)

CONSULTATION ON SUPREME COURT NOMINEES

Mr. CORNYN. Mr. President, I want to talk about the anticipated vacancy on the U.S. Supreme Court. Whatever the timeframe for a vacancy on the Court, the process for selecting the next Associate or Chief Justice should reflect the very best of the American judiciary, not the worst of American politics. We deserve a Supreme Court nominee who reveres and respects the law--and a confirmation process that is civil, respectful, and keeps politics out of the judiciary.

This morning, a number of our colleagues on the other side of the aisle asked to be consulted about any future Supreme Court nomination.

I have two responses. First, we should be clear. Although consultation, in theory, may or may not be a good idea, there is no constitutional requirement or Senate tradition that obligates the President, or anyone in the executive branch, to consult with individual Senators, let alone with the Senate as an institution.

Second, consultation may or may not be a good idea, but Senators should behave in a manner that is both respectful and deserving of such a special role in the Supreme Court nomination process, if they expect the administration to meet them halfway.

At a minimum, the President should consider the following three conditions before agreeing to any special consultation with any particular Senator. First, whoever the nominee is, the Senate should focus its attention on judicial qualifications, not personal political beliefs. Second, whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan, political, or personal attacks. Third, whoever the nominee is, the Senate should apply the same fair process that has existed for more than two centuries, and that is confirmation or rejection by a majority vote.

First, as I said, there is no constitutional or Senate tradition requiring consultation with individual Senators, let alone with the Senate as an institution.

The text of the Constitution contemplates no formal role for the Senate as an institution--let alone individual Senators--to advise on selecting Justices on the Supreme Court, or on any Federal court.

As renowned constitutional scholar and historian, David Currie, has pointed out, President George Washington did not consult with the Senate. I quote: ``Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.''

Professor Michael Gerhardt, the top Democrat adviser on the confirmation process, has similarly noted that ``the Constitution does not mandate any formal prenomination role for the Senate to consult with the President; nor does it impose any obligation on the President to consult with the Senate prior to nominating people to confirmable posts.''

My second point: If there is to be any consultation, the Senate must first show that it will behave itself in a manner worthy of such a special role in the Supreme Court nomination process. After all, there is a right way and a wrong way to debate the merits of a Supreme Court nominee. And history itself provides some useful benchmarks.

First, whoever the nominee is, the Senate should focus its attention on judicial qualifications--not on personal political beliefs.

When President Clinton nominated Ruth Bader Ginsburg to the Court in 1993, Senators knew that she was a brilliant lawyer with a strong record of service in the law. Senators knew that she served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. And they know that she had previously written that traditional marriage laws are unconstitutional; that the Constitution guarantees a right to prostitution; that the Boy Scouts, Girl Scouts, Mother's Day, and Father's Day are all discriminatory institutions; that courts should force taxpayers to pay for abortions against their will; and that the age of consent for sexual activity should be lowered to the age of 12. The Senate, nevertheless, confirmed her by a vote of 96 to 3.

Similarly, when Steven Breyer, nominated in 1994 by President Clinton, and Antonin Scalia, nominated in 1986 by President Reagan, the Senate recognized that these were brilliant jurists with strong records of service. Breyer had served previously as chief counsel to Senator Ted Kennedy on the Senate Judiciary Committee. His nomination to the Court was opposed by many conservatives because of alleged hostility to religious liberty and private religious education, while Scalia was known to hold strongly conservative views on a number of topics. The Senate, nevertheless, confirmed them by votes of 87 to 9 and 98 to 0, respectively.

Second, whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan political or personal attacks.

Unfortunately, as we know, respect for nominees has not always been the standard--at least it has not always been observed.

Lewis Powell, a distinguished member of the U.S. Supreme Court, during his nomination process was accused of demonstrating ``continued hostility to the law,'' and waging a ``continual war on the Constitution.'' Senate witnesses warned that his confirmation would mean that ``justice for women would be ignored.'' John Paul Stevens, also with a distinguished record of service on the Supreme Court, was charged during his confirmation hearings with ``blatant insensitivity to discrimination against women.'' Anthony Kennedy, also on the Court, was scrutinized for his ``history of pro bono work for the Catholic Church,'' and found to be ``a deeply disturbing candidate for the United States Supreme Court,'' according to some accounts.

David Souter, also on the U.S. Supreme Court, during his confirmation process, was described as ``almost neanderthal,'' ``biased,'' and ``inflammatory.'' One Senator actually said Souter's civil rights record was ``particularly troubling'' and ``raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.'' That same Senator condemned Souter for making ``reactionary arguments'' and for being ``willing to defend the indefensible'' and predicted that, if confirmed, Souter would ``turn the clock back on the historic progress of recent decades.'' At Senate hearings, witnesses cried that, ``I tremble for this country if you confirm David Souter,'' warning that ``women's lives are at stake,'' and even predicting that ``women will die.''

The best apology for these ruthless and reckless attacks is for them never to be repeated again. Unfortunately, recent history is not particularly promising. Even before President Bush took office in January 2001, the now-leader of the opposition party in the Senate told Fox News Sunday that ``we have a right to look at John Ashcroft's religion,'' to determine whether there is ``anything with his religious beliefs that would cause us to vote against him.'' And over the last 4 years, this President's judicial nominees have been labeled ``kooks,'' ``Neanderthals,'' and even ``turkeys.'' Respected public servants and brilliant jurists have been called ``scary'' and ``despicable.''

Third, whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries when it comes to confirmation or rejection--by an up-or-down vote of the majority.

Our colleagues on the other side of the aisle have recently asked to be consulted about any future Supreme Court nomination--even though the Constitution provides only for advice and consent of the Senate, not individual Senators, and only with respect to the appointment, not the nomination of any Federal judge. If Senators want an extraordinary and extraconstitutional role in the Supreme Court nomination process, the President should first consider seeking a commitment from them to subscribe to the three principles that I have talked about briefly above.

After years of unprecedented obstruction and destructive politics, we must restore dignity, honesty, respect, and fairness to our Senate confirmation process. That is the only way to keep politics out of the judiciary.

Mr. McCONNELL. Will the Senator yield for a question before yielding the floor?

Mr. CORNYN. Yes.

Mr. McCONNELL. I was listening carefully to my friend's comments about the process by which we react to the President's nominees to the Supreme Court. Did I hear my colleague correctly, in discussing the issue of what is or is not a mainstream nominee, that Ruth Bader Ginsburg, for whom I voted--and I believe the final vote was something like 96 to 3--had at one time speculated that there might be a constitutional right to prostitution? Did she not suggest that at some point in one of her writings?

Mr. CORNYN. The distinguished assistant majority leader is correct.

Mr. McCONNELL. Also, had she not suggested at one point that there be a uni-sex ``Parent's Day'' instead of a Father's Day or a Mother's Day, or something similar to that?

Mr. CORNYN. Again, the distinguished assistant majority leader is correct.

Mr. McCONNELL. I ask my friend from Texas, is it not the case that many nominations that have been sent up here by Presidents have opined, from time to time, controversial or provocative views, particularly if they have had a background as a teacher, that might strike many of us on this side of the aisle, and I suspect a majority on the other side, as outside of the mainstream to the left?

Mr. CORNYN. I say to the distinguished assistant majority leader that any lawyer--and we are likely to get a lawyer nominated for this important job on the Supreme Court--is going to have taken on behalf of a client, someone they have represented, or if they have taught, as the question suggests, during the course of their academic musings, programs, or writings, in Law Journal articles or otherwise, they are going to engage in the kind of intellectual exercise speculating perhaps about the limits of the law or what the law would or would not be under a particular set of circumstances.

It is simply unreasonable to ascribe to those nominees, let's say, the views of someone they are defending in a criminal case because they have volunteered to serve pro bono to defend somebody accused of a crime, or to ascribe to them as their own personal beliefs or ones they will actively seek and enforce from the bench or what they have written in academic writings on perhaps the limits of the Constitution or what would or would not stand up in a particular court decision.

I agree we should be fair to the nominees. We should require they rule in accordance with precedent and the intent of Congress when it comes to interpreting acts of Congress. But we should not try to mischaracterize them or paint them as out of the mainstream by viewing in isolation some of these writings or representations in their legal practice.

Mr. McCONNELL. Finally, let me ask, is it not largely the case, I ask my colleague from Texas, that until the last few years, controversial or provocative comments or writings have, in fact, not been used as a rationale for defeating nominees, assuming they are lacking in qualifications or ``outside the mainstream'' as a rationale for defeating otherwise well-qualified nominees?

Mr. CORNYN. As the distinguished assistant majority leader knows, there has been a mischaracterization of the record of many nominees who have come up in recent times and one I hope we do not see repeated when we have this Supreme Court vacancy to consider, the President's nominee. But we have not had a good record recently of treating these nominees respectfully, understanding that these are people who are subjecting themselves to this process and public service at some personal sacrifice. I worry if this process becomes too mean and too unfair that we will simply see people who will not answer the call when the President requests they serve as a judge.

We have seen those kinds of characterizations and attacks, as the assistant majority leader described them. It is my hope, and I know his, that we will not see a repetition of that, but we will see a respectful process. We will see one where the Senate does its job. We ask tough questions. We do a thorough investigation. But at the end of the day, we do not try to paint these nominees as something they are not and that we have an up-or-down vote on these nominees, as we have had for more than 200 years.

Mr. McCONNELL. I thank my friend from Texas for responding to my questions.

Mr. CORNYN. I yield the floor, Mr. President.

BREAK IN TRANSCRIPT

Mr. CORNYN. Mr. President, I rise to add my support to the Domenici amendment No. 891. However, before I proceed, I want to extend my gratitude and congratulations to the chairman and ranking member of the Energy and Natural Resources Committee, Senator DOMENICI and Senator BINGAMAN, for their hard work in producing this Senate energy bill.

Congress has tried several times to approve a comprehensive energy bill. Under their wise guidance and counsel, I believe that we will be successful this time. It is critical that we provide the country with the resources and tools to meet our growing energy needs and this bill will go a long way in accomplishing that goal.

It is toward this same goal that I support this amendment that would share a portion of the revenues generated by off-shore oil and gas operations with coastal producing States. As we work to address our Nation's growing energy needs and to increase our domestic production of oil and gas, there will be enormous pressures placed on the communities along our coasts that serve as a platform to these operations. These pressures take a variety of forms and present a number of challenges. By giving coastal States an arrangement that States with in-land development already have by sharing some of these oil and gas revenues, we can mitigate some of these pressures. This includes assistance with conservation of critical coastal habitats and wetlands to providing coastal communities with help for infrastructure and public service needs. There has been a significant amount of discussion on the issue of coastal erosion in Louisiana, but I want the Senate to know that parts of Texas are experiencing some of the very same problems.

I also appreciate the comments and reservations expressed by the distinguished Chairman of the Budget Committee. As a member of the Budget Committee, I recognize the significance and implications of waiving the Budget Act. However, in this case, the budget resolution does contain a specific reserve fund to accommodate spending in the energy bill. This amendment does not cause the bill to exceed the funds provided in the resolution for the bill and is fully within the amount of money Congress set aside for the energy bill.

Texas is proud of its heritage as an energy producing State. Texas will continue to play a vital role in providing for the Nation's energy needs. This amendment is a reasonable proposal to address an issue of basic fairness. This will demonstrate to those communities along the coast that are so vital to the production of oil and gas for the Nation that they are valuable, important, and supported.

BREAK IN TRANSCRIPT

http://thomas.loc.gov