Department of State, Foreign Operations, and Related Programs Appropriations Act, 2006

DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS APPROPRIATIONS ACT, 2006 -- (Senate - July 19, 2005)

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Mr. CORNYN. Mr. President, just a few moments ago, we all learned, through the miracle of modern technology, that the President intends to announce his Supreme Court nominee tonight at 9 p.m. when he addresses the Nation.

This is certainly the culmination of an unprecedented consultative process that this President has undertaken with the Senate, spending more than 2 weeks now, I believe, reaching out to Senators on both sides of the aisle, asking for their suggestions.

Now, the President believes that it is appropriate for him to name the successor to Justice Sandra Day O'Connor on the U.S. Supreme Court.

It is my hope that tonight's announcement will be met with some restraint on the part of the Members of the Senate, that we will hold our fire, and that we will not prejudge this nominee or seek to use this as an opportunity to perhaps disparage the nominee before we have had a chance to ask questions, before the nominee has had a chance to meet with Members, and before we have had a chance to conduct a hearing before the Senate Judiciary Committee, as we will surely do either in late August or early September.

We can do better in the Senate than we have done in the recent past when it comes to judicial nominations. I think we have shown that we can conduct ourselves with dignity and civility, even as we have disagreed. Indeed, that is one of the great things about this body--that even people who disagree can debate, but then turn that debate over to our colleagues for an up-or-down vote and the judgment of the American people.

I hope we have a dignified process and one that reflects well on the Senate, that treats this nominee fairly, and allows the President to have his nominee considered in the regular course of our business.

Throughout this debate, even before the President has named a nominee, various Senators have come to the floor and opined about how this process should go forward. I will respond to some of the comments made earlier today by the senior Senator from Massachusetts regarding the process.

The senior Senator from Massachusetts envisions a step in this process where the President gives him and his colleagues the ability to veto particular nominees--in other words, suggesting that the President ought to perhaps share some on his short list with the Senate before the President can name a particular nominee. Nothing in the Constitution provides for or requires such a step. The President is under no obligation to give any Senator the power to veto his nomination.

The Constitution entrusts the President with the power to nominate, and there is no requirement for the President to do anything further. Indeed, as I mentioned a moment ago, this President has gone above and beyond the call and consulted in an unprecedented manner. But certainly the Constitution doesn't give this President, or impose upon this President, the obligation to allow Senators to co-nominate their particular choice along with the President. Rather, it provides for separate and distinct functions for the President to nominate and then for the Senate to conduct hearings, to act in its role of advice and consent, and then to vote on the nominee.

The senior Senator from Massachusetts has said he wants the President to nominate someone who is independent and impartial. I submit that the best way to do that is to do precisely the opposite of what the senior Senator from Massachusetts says he intends to do; that is, he says he intends to demand that the nominee answer questions about how he or she will rule on particular questions or particular issues.

The Senator has stated his intention to ask nominees how they would rule on a host of different issues. Today, he mentioned several of them--everything from retirement benefits to college admission standards. He even noted that all of these issues are likely to be subjects of future Court decisions. It would, however, undermine the independence of the nominee and the judiciary to demand that he or she answer questions about issues that are likely to come before the Court.

How can a nominee be truly independent from the Congress if they are required to make a pledge to certain outcomes in the Senate in order to get confirmed? Well, simply stated, they cannot be independent and make such a pledge. So it would be inappropriate for any nominee to make that pledge. While certainly I recognize and respect the right of any Senator to ask any question he or she wants, no nominee worthy of confirmation would in fact answer those questions and make such a pledge.

It would also undermine the impartiality of the person nominated to demand that he or she answer questions on issues likely to come before the Court. Imagine if you came before a judge and you find out that that judge already, during the confirmation process, stated his or her belief in the correctness of a certain outcome, before you have even had a chance to present your case to the Court. Imagine if that judge promised the President or a Senator that he or she would rule against you no matter what you said.

That is not equal and open-minded justice. That is not a judicial process but rather a political process, and one we ought to avoid at all costs.

It is also not how we have conducted our business in the recent past. Justice Ginsburg was confirmed by the Senate by a vote of 96 to 3. Before her service on the Federal bench, Justice Ginsburg served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws and challenged the Pledge of Allegiance because the words ``under God'' are invoked in that pledge.

Before she became a judge, now-Justice Ginsburg expressed opposition to laws prohibiting bigamy and prostitution. She wrote that the Boy Scouts and Girl Scouts were discriminatory institutions, and that taxpayer funds should be used to pay for abortions--hardly views that the American people would view as mainstream. Yet the Senate did not engage in asking her to make prejudgments about cases she later would rule on from the Supreme Court. They did not ask her to make promises to politicians about how she would perform once confirmed. Indeed, Republicans and Democrats alike set aside such concerns and approved her nomination.

Make no mistake, I am just as curious as anybody else about what the private views of a nominee might be. But the need to assure a fair process and an independent judiciary and to avoid the hyper-politicalization of this process more than outweighs a results-oriented curiosity on my part or on the part of any other Senator, I submit.

Finally, the Senator from Massachusetts said he also wants the President to nominate a consensus choice to the Supreme Court. But it will be up to the Senator and his other colleagues whether the nominee meets their definition of what actually constitutes a consensus choice. The President has said he intends to nominate someone in the mold of Justice Scalia. Justice Scalia was confirmed by a vote of 98 to 0. That is quite a consensus.

So long we do not change the standard from when the nomination of Justice Scalia was considered or Justice Ginsburg was considered, then we will have a relatively easy time confirming the President's selection if they meet the basic qualifications of legal scholarship, high ethical rectitude; in short, the type of person we would entrust with making the weighty decisions that are made by the Supreme Court.

But if we, to the contrary, revert to a political process, one that is accusatory of this nominee before we actually have a chance to investigate their background and fitness for this office, if we engage in asking nominees to make promises to politicians about how they will rule in the future, I think we will not have conducted ourselves in the best traditions of the Senate, and certainly not in a way that befits the awesome responsibility imposed upon the Senate under the Constitution of the United States.

Mr. President, I yield the floor.

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