June 25, 1992 CONGRESSIONAL RECORD-SENATE

Let us take a look at the uses ofthese materials. Over 50 percent of theplatinum consumed in the UnitedStates is used in the production andmanufacturing of pollution-reductionmechanisms that we know as the cata-lytic converters used in automobiles.Palladium is primarily used in theelectronics industry and computers,but both can be found in the produc-tion of gasoline, fertilizer, and chemi-cals.

Again, I suppose that we can lose thecatalytic converter business to a for-eign country, but we should not. If wedo lose It, along with it goes the jobsassociated with it.

So I hope we will take a look at thesebusinesses and determine the impor-tance of the platinum and palladiummining business.

At the present time, the StillwaterMine owners have invested a total of$146 million in exploration and develop-Ing the mineral potential of a smallportion of the mine. It employs almost400 people, will expand that employ-ment to 1,100 if the mine expands, andeventually produce 5 percent of theworld's platinum and 20 percent of theworld's palladium.

I want to ask all of my colleagueshere in the Senate; what is it worththat we can hire American workers toproduce these minerals at this one lo-cation in the United States rather thanto pay a foreign country whatever themarket can bear to import these mate-rials as we need them? If there was ashortage of these materials in theworld market, could we get along with-out the contribution these mineralsmake in terms of those products thatwe absolutely need. These questionscan be extended to every mining oper-ation throughout the United States.

I submit that we all know the answerto the jobs question; we need every oneof them. As for the other questionsthat I have raised today, a mineralspolicy would provide many of the an-swers and stop us from flounderingaround in the muddy waters of this am-biguous mining law debate.

I urge all of my colleagues to see thisissue for what it is. An assault on themining law would lose the potential todisrupt State and local economies,deny every American the benefits ofthe uses of the strategic and criticalmaterials mined in this country, andsend more jobs and workers beyond theborders of this country or into the un-employment line. A minerals policywould help us develop the economic po-tential that we have in this country,and the future of our country dependson this, especially the national secu-rity needs.

Thank you, Mr. President.The ACTING PRESIDENT pro tom-

pore. The Senator's time has expired.The Senator from Delaware is now

recognized to speak for up to 1 hourand 15 minutes.

REFORM OF THE CONFIRMATIONPROCESS

Mr. BIDEN. Mr. President, I wouldlike to apologize in advance for tre3-passing on the President's time and thetime of the Senate. In my over 19 yearsin the Senate, I have never sought tospeak before the Senate for as long aperiod as I sought today in morningbusiness.

But the subject to which I speak issomething that I have given a greatdeal of thought, been asked by the Sen-ate to spend some considerable timethinking about, and it is extremelycontroversial. And in light of the factthat we are within a day of the timethat historically the Supreme CourtJustices make Judgments about wheth-er or not they are going to stay on foranother year, it seems somewhat pro-pitious, although I know of no Justicewho intends to resign-I do not meanto imply that-my speech this morningis about reforming the confirmationprocess and the need for a new dawnwith regard to how we conduct our-selves relative to the confirmationprocess involving Supreme Court nomi-nees.

Seven years ago, Harvard law profes-sor, Laurence Tribe, reflected on whatwas then the second-oldest SupremeCourt in history, and he wrote:

A great Supreme Court is a sort of lialley'sComet In our constitutional universe, a rareoperation arriving once each lifetime, burn-lial; intensely in our legal firmament for abrief period before returning to the deepspace of constitutional history.

He added that a quiet period in whichthere were just two Supreme Courtnominations in 15 years was "the calmbefore the constitutional storm thatsurely lies ahead," predicting that,sometime in this decade, we will betossed into the turbulent process thathas gripped this Nation in the past.And, today, after the naming of sevenmen to fill five vacancies on the Su-preme Court in just 5 years, we findourselves in the midst of the stormProfessor Tribe forecasts.

In these past 5 years, the U.S. Senatehas endured three of the most conten-tious confirmation fights in the historyof the United States:

The 1986 nomination of WilliamRehnquist, who was confirmed by themost votes cast against him of anyjudge to the Supreme Court in our his-tory up to that point.

The 1917 rejection of Robert Bork atthe end of an epic conflict betweencompeting constitutional visions.

The subsequent withdrawal of Doug-las Ginsburg just days after PresidentReagan had selected him to succeedBork as his nominee.

The fierce flight in 1991, which noneof us, I suspect, will ever forgot, overClarence Thomas' confirmation to theCourt, which broke Chief JusticeRelnquist's record for' receiving themost negative votes in Senate history.

The immediate product of these con-flicts, the change in the Court over thepast few years, has already been dra-matic. But as Duke professor, WalterDellinger, pointed out, there is everyreason to believe we may see as manyas five more Justices retire within thenext 4 years. In all likelihood, Mr.President, we stand at only the half-way point in the remaking of the Su-preme Court, with as many confirma-tion controversies in the coming Presi-dential term as we saw over the pasttwo terms combined.

By the time we arrive at the nextelection year in 1996, there is a sub-stantial chance that no member of theCourt who was serving on the Court inJune of 1986 will remain on the bench.Such a complete replacement of theCourt in just 10 years has only oneprecedent since the Court was perma-nently expanded to nine members over100 years ago. Today, as we stand atthe midpoint in this dramatic change, Iwould like to discuss what has tran-spired over the past few years with re-spect to the confirmation process.

Mr. President, I also want to discussthe question of what should be done ifa Supreme Court vacancy occurs thissummer. Finally, I want to offer fourgeneral proposals for how I believe thenomination and confirmation processshould be changed for future nomina-tions.

Let me start first with a consider-ation of the confirmation process ofthe past decade. As I mentioned ear-lier, Presidents Reagan and Bush havenamed eight nominees for six positionson the Court during their Presidentialterms. This is not the first time in ourhistory that a strong ideological Presi-dent and his loyal successor have com-bined to shape the Court.

Presidents Washington and Adamsmade 18 nominations, of which 14 wereconfirmed and served among theCourt's 6 Justices.

Presidents Lincoln and Grant nomi-nated 13 candidates for the Court, ofwhom 9 were confirmed and served.

Presidents Roosevelt and Trumannamed 13 Justices, all confirmed, intheir combined terms in the WhiteHouse.

What distinguished the Reagan-BushJustices from these historical par-allels, however, is that half of themhave boon nominated in a period of adivided Government. In each of theseprevious times, a sweeping nationwideconsensus existed, as reflected by theelection of both political branches oflike-minded officials, which justifiedthe sweeping changes that took placeat the Supreme Court.

But over the past two decades, Mr.President, no such consensus has ex-Isted, unlike the eras to which I point-ed-Washington-Adams, Lincoln-Grant,Roosevelt-Truman.

Since 1968, Republicans have con-trolled the White House for 20 of 24

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CONGRESSIONAL RECORD-SENATE June 25, 1992years. Democrats have controlled theSenate for 18 years of this period. Thepublic has not given either party amandate to remake the Court into abody reflective of a strong vision of ourrespective philosophies, and both of ourparties should finally, honestly admitto that fact. Both of our parties shouldhonestly have conceded this fact. Butneither has, thus far.

Of course, this is not the first periodwhen a divided Government has beenrequired to fill the third branch of Gov-ernment. About one-fifth of all Su-preme Court Justices have been con-firmed by a party different from thePresident. One-third of all Justicesconfirmed since 1930 have been ap-proved under these circumstances.

It was a Senate controlled by pro-gressive Republicans and Democratsthat confirmed three of President Hoo-ver's four nominees for the Court, anda Democratic Senate reviewed and ap-proved Eisenhower nominees. Yet, inthese previous periods of divided Gov-ernment, Mr. President, indeed in someperiods where a President and the Sen-ate shared the same party, Presidentscommonly have taken the Constitutionat its word and asked for the Senate'sadvice-advice-as well as its consent.These Presidents have consulted withthe Senate about their choices for theCourt and/or chose nominees with bal-anced or diverse ideologies. Thus, theconservative Republican, Hoover,named conservative Chief JusticeCharles Evan Hughes, but also named amoderate, Owen Roberts, and a liberal,Benjamin Cardoza; the latter, Ben-jamin Cardoza, after heated executive-Senate consultations.

Similarly, President Eisenhower'schoices for the Court included conserv-ative John Harlan and Charles Whit-taker, moderate Potter Stewart, andliberals Earl Warren and William Bren-nan. Even President Nixon, whoshowed no reluctance to take full ad-vantage of Presidential prerogatives,balanced his choices of conservativesWarren Burger and William Rehnquistwith those of moderate RepublicanHarry Blackmun and conservativeDemocrat Lewis Powell.

This, of course, has not been themodel that Presidents Reagan andBush have followed. Indeed, even lack-ing the broad support for their visionof the Court which Presidents Washing-ton and Adams, Lincoln and Grant, andRoosevelt and Truman had, PresidentsReagan and Bush have tried to recastthe Court in their ideological image, asthese Presidents did.

Put another way: This is not the firsttime that a tandem of Presidents havesought to remake the Supreme Court,nor is it the first time that dividedGovernment has had to fill a number ofseats in that body.

But it is the first time that both havebeen attempted simultaneously andthat, more than anything else, has

been at the root of the current con-troversy surrounding the selection ofthe Supreme Court Justices.

It was to cope with this stress, astress created by the decision of Presi-dents Reagan and Bush to attempt tomove the Court ideologically into aradical, new direction which this coun-try does not support, it was to copewith this stress that the modern con-firmation process was created. And onthis point, there should be no doubtand no uncertainty.

The use that Presidents Reagan andBush made of the Supreme Court nomi-nating process in a period oi dividedGovernment is without parallel in ourNation's history. It is this power grabthat has unleashed the powerful and di-verbo forces that have ravaged the con-firmation process. If the American peo-ple are dissatisfied with where theyfind the process today, they must un-derstand where the discord that hascome to characterize it began: WithPresidents Reagan and Bush and theirdecision to cede power in the nominat-ing process to the radical light withintheir own administration.

It was in the face of this unprece-dented challenge to the SupremeCourt's selection process that we in theSenate developed an unprecedentedconfirmation process. The centerpieceof this new process was a frank rec-ognition of the legitimacy of Senateconsideration of a nominee's judicialphilosophy as part of the confirmationreview.

I ask unanimous consent at thispoint that a previous speech I havemade on the Senate's right to look atand obligation to look at the ideologyof the nominees be printed in theRECORD.

There being no objection, the mate-rial was ordered to be printed in theRECORD, as follows:ADVICE AND CONSENT: TlE RIOT AND DUTYOF TIE SENATE TO PROTECT TIlE INTEGRITYOT RilE, SUrREME COURT

Mr. BIDEN. Mr. President, on July 1, 1987,President Reagan nominated Judge RobertBork to be an Associate Justice of the Su-premo Court. I am delivering today the firstof several speeches on questions the Senatewill face In considering the nomination.

In future speeches, I will set out my viewson the substance of the debate-and there Isroom for principled disagreement. But Inthis speech, I want to focus on the terms ofthe debate-and I hope to put an end to dis-agreement on the terms of the debate. Argu-ing from constitutional history and Senateprecedent, I want to address one questionand one question only: What are the rightsand duties of the Senate In consideringnominees to the Supreme Court?

Some argue that the Senate should deferto the President in the selection process.They argue that any nominee who meets thenarrow standards of legal distinction, highmoral character, anti judicial temperamentIs entitled to be confirmed In the Senatewithout further question. A loading exponentof this view was President Richard Nixon,who declared in 1970 that the President is"the only person entrusted by the Constitu-

tion with the power of appointment to theSupreme Court." Apparently, there are somein this body and outside this body who sharethat view.

I stand here today to argue the oppositeproposition. Article 11, section 2, of the Con-stitution clearly states that the President"shall nominate, and by and with the adviceand consent of the Senate, shall appoint* * * Judges of the Supreme Court. * * *" Iwill argue that the Framers intended theSenate to take the broadest view of its con-stitutional responsibility. I will argue thatthe Senate historically has taken such aview. I will argue that, In case after case, Ithas scrutinized the political, legal, and con-stitutional views of nominees. I will arguethat, in case after case, It has rejected pro-fessionally qualified nominees because of theperceived effect of their views on the Courtand the country. And I will argue that, incertain cases, the Senate has performed aconstitutional function in attempting to re-sist the President's efforts to remake the Su-preme Court in his own image.

TIlE INTENT OF TIE FRAMERSHow can we be sure of the scope of the Sen-

ate's constitutional rights and duties underthe "advice and consent" clause? We shouldbegin-but not end-our investigation byconsidering the intent of the Framers. Basedon the debates of the Constitutional Conven-tion, it is clear that the delegates intendedthe Senate to set into play a broad role Inthe appointment of judges.

In fact, they originally intended evenmore. At the beginning of the ConstitutionalConvention, they intended to give the Con-gress exclusive control over the selectionprocess and to leave the President out en-tirely. On May 29, 1787, the ConstitutionalConvention began to deliberate In Philadel-phia. It adopted as a working paper the Vir-ginia Plan, which provided that "a NationalJudiciary be established * * * to be chosenby the National Legislature."

A few weeks after debate began, some dele-gates questioned the wisdom of entrustingthe selection of judges to Congress alone.They feared that Congress was large andlumbering and might have some troublemaking up its mind. James Wilson of Penn-sylvania was an advocate of strong Execu-tive power, so he proposed an obvious alter-native: giving the President exclusio powerto choose the judges. This proposal found nosupport whatsoever. If one concern unitedthe delegates from large States and smallStates, North and South, it was a determina-tion to keep the President from amassingtoo much power. After all, they had fought awar to rid themselves of tyranny and theroyal prerogative in any form. John Rut-ledge of South Carolina opposed giving thePresident free rein to appoint the judiciarysince "the people will think we are leaningtoo much toward monarchy."

James Madison, the principal architect ofthe Constitution, agreed. He shared Wilson'sfear that the legislature was too large tochoose, but stated that he was "not satisfiedwith referring the appointment to the Execu-tive." lie was "rather inclined to give It tothe Senatorial branch" of the legislature,which he envisioned as a group "sufficientlystable and Independent" to provihe "delib-erate Judgments." Accordingly, on Juno 13,Madison formally moved that the power ofappointment be given exclusively to the Sen-ate. Ills motion passed without objection.

On July 18, 200 years ago last Saturday,James Wilson again moved "that the Judgesbe appointed by the Executive." Ills motionwas defeated, by six States to two. It was

16308

June 25, 1992 Cwidely agreed that the Senate "would becomposed of men nearly equal to the Execu-tive and would of course have on the wholemore wisdom." Moreover, "it would be lesseasy for candidates to intrigue with them,than with the Executive."

Obviously, we can see here the fear thatwas growing on the part of those at the Con-vention was that respective nominees wouldbe able to intrigue with a single individual,the President, but not tse Senate as a whole.So Mr. Ghorum of Massachusetts suggested acompromise proposal: to provide for appoint-ment by the Executive "by and with the ad-vice and consent" of the Senate. Withoutmuch debate, the "advice and consent" pro-posal failed on a tie veto.

Up until now, no one, no single vote at theConvention, gave the Executive any role toplay in this process.

All told, there were four different attemptsto Include the President In the selectionprocess, and four times he was excluded.Until the closing days of the Convention, thedraft provision stood: "The Senate of theU.S. shall have power to * *'* appoint * * *Judges of the Supreme Court." But the con-trovorsy would not die, and between August25 and September 4, the advice and consentcompromise was proposed once again. OnSeptember 4, the Special Committee onPostponed Matters reported the compromise,and 3 days later, the Convention adopted itunanimously.

What can explain this llth hour com-promise? Well, historians have debated it foryears.

Gouverneur Morris of Pennsylvania offeredthe following paraphrase. The advice andconsent clause, he said, would give the Sen-ate the power "to appoint Judges nominated

ONGRESSIONAL RECORD-SENATEto them by the President." Was his Interpre-tation correct?

Well, we can never know for sure. but itseems to be the overwhelming point of viewamong the scholars. But It Is difficult toImagine that after four attempts to excludethe President from the selection process, theFramers Intended anything less than thebroadest, role for the Senate-in choosing theCourt and checking the President in everyway.

The ratification debates confirm this con-clusion. No one was keener for a strong Ex-ecutive than Alexander Hamilton. But inFederalist Papers 76 and 77, Hamiltonstressed that even the Federalists intendedan active and independent role for the Sen-ate.

In Federalist 76, Hamilton wrote that Son-atorial review would prevent the Presidentfrom appointing justices to be "the obsequi-ous Instruments of his pleasure." And inFederalist 77, he responded to the argumentthat the Senate's power to refuse confirma-tion would give It an improper influence overthe President by using the following words:"If by influencing the President, be meantrestraining him, this Is precisely what musthave been intended. And it has been shownthat the restraint would be salutary. * * *"

Now, this Is the follow, Hamilton, who ar-gued throughout this entire process that weneeded a very strong executive, making thecase as to why the Senate was intended torestrain the President and play a very Im-portant role.

Most of all, the Founders were determinedto protect the integrity of the courts. InFederalist 78, lamilton expressed a commonconcern: "Tie complete independence of thecourts of justice," he said, "is peculiarly es-sential In a limited Constitution. * * * Liml-

16309tations of this kind can be preserved in prac-tice no other way than through the mediumof courts of Justice, whose duty It must be todeclare all acts contrary to the manifesttenor of the Constitution void."

So. In order to preserve an Independent Ju-diciary, the Framers devised three Importantchecks: life tenure, prohibition on reductionin salary and, most important, a self-correct-ing method of selection, As they rolled onthe Court to check legislative encroach-ments, so they rolled on the Legislature tocheck Executive encroachments. In dividingresponsibility for the appointment of judges,the Framers were entrusting the Senate witha solemn task: preventing the Presidentfrom undermining judicial Independence andfrom remaking the Court in his own image.That in the end Is why the Framers intendeda broad role for the Senate. I think It is be-yond dispute from an historical perspective.

TIIE SENATE P'RECEDENTSThe debates and the Federalist Papers are

our only keys to the minds of the Founders.Confining our investigation to "original In-tent," you would have to stop there. Butthere is much more. Two centuries of Senateprecedent, always evolving and alwayschanging with the challenges of the moment,point to the same conclusion: The Senatehas historically taken seriously its respon-sibility to restrain the President. Over andover, it has scrutinized the political viewsand the constitutional philosophy of nomi-nees, In addition to their judicial com-petence.

I ask unanimous consent to Insert in theRECORD a list of all nominations rejected orwithdrawn over the last 200 years.

There being no objection, the list was or-dered to be printed In the RECORD. as follows:

I. SUPREME COURT NOMINATIONS REJECTED OR WITHDRAWN, 1795-1970Supreme CouiINommine inating President's Sena Rejected (r)/pstped (I th-

pesident party Sa party drawn (W)

John Rutledge 11795) ....................................... Washington Federalist F ........... R .......................................

AleJander Wolcott 1811) .............................. Madison . Dem.-Repub ....

John Crittnden 11829) .............. J.. Adems DR........ .... DR ..............

Roger Brone looy (1835) ..... .... .. Jackn ....... Dem ................ Whig ..........

John Spi ecertls 11844) .................. ................ lyer ... . .. W/D ............. W ...........

Reuben Wabesoh (1844) ...... ....................

fdward King (18441 ...............

Edward Kg 11845) ....................

John Read (1845) .......................George Woodward (1846) .................

Tyler .........

Tyle ..............Tyle .........

Tyler.Polk .....

W/D.

W/olWTT ..............

W / ..... ......

W ... ..... ...

W .............. .

W ........... ,..

W .. .......

IN.

DR .............. R ................................ .............

P ...... ................. . .........

P. Later confirmed as Chief Justice1836

RD ............... ..............

r .. .. ....... ........ ............. .... ........ .

P ... ................................

W .... .... ........... ..... ..... .

No action .........................I .................. ....... .....

Edward Bradlord (1852) . .. Fillmore W........ . D . W, No action ............................

George Badger (1852) .......... ................. Fillmor ............ W .......... P ..................

William Micon (1853) ............... Filroe ..... W.Jeremiah Black (1861) .............. Buchanan 0... O.

Ifenry Stanbury (1866) .............. A Johnsoe 0

Ebererer flar (1870) . ... . .. ....... Grant ...... R

George Williams (1814 .. ...... ..... Grent ...

D ..Some Dems.

had quitSenatealter se.cession

I.

I . . , R

Caleb Cushing (1874) ........... .... Grant ..... R . ......

Stanley Matthews (1181). . . Ilays ... T .........

No action ...................R ... .................. ...

Court seat eliminated .... .......

R... ..................

W ... ... .... .. ..... ..

No judiciary Comm action, it.nominated by Garfeld and conhimed by 24 23 vote

Vole Reasons for Seiale opposition

14- Attacked by his fellow Federalits for his opposition to [he Jay Treaty of 1794.1.1tO24-9 Unpopular with Federalists for strong enforcement of Embargo and Non.intercourse Act

as US. Collecte of Customs for Connecticut, also questionable legal quali-ica*lions 1.'

23- Adams was a tame duck President (nomination came after his 1828 defeat by lack-17 son).'

........ Unpopular with Whips because, as Secretary of the Tiasory, removed govemmentfunds from the Bank of the United Slates in compliance with Jackson anh-Bank pot-icy ",

26- Tyler was the test to succeed to the presidency as VWiePresident and his power was21 questioned generally, Tyler viewed as only a nominal Whig, Spencer defeated he.

cause of his clone political association with Tyler,27- Partisan opposition to Walworth by Senate Whigs.'20

29- Senate Whigs anticipated that Tyler would not be nominated for President, and was18 thus effectively a lame duck I

Tyler became a lame duck in fact after Polk's election (ing nomination resubmitted inDecember 1844.1

......... Nomination made February 1845, Senate adjourned without taking action.'29- Wondoard's home state Senator, Simon Cameron, resisted on sight to approve appoint.20 ment ("seratoial courtesy'), Woodward also attacked as erteme "A ecan nati-

. lore effectoly a lame duck because not nominated for President in 052, Senateadjourned without taking action.

26- Fillmore a lame duck in fact after Pierces electon, nomination of Sen. , 'gei (a25 Whig) "postponed" by Senate Democratic majority to protect Court seat fr" rmocial

Pierce to tilt........... Same reasons as with Badger nomination, above 5

26- Black was opposed politically by Democratic Sen. Stephen Douglas (loser of 1860 rie-25 tion), Buchanan was a lame duck in fact (nomination made alter Lincoln's eleclon),

Senate antislavery forces opposed because Black had advised Buchanan that forcecould not be used to prevent secession and maintain in the Union 'J

Radical Republicans controlling Senate reduced size of Supreme Court by two seats todeny Democratic PResident Johnson a chance to make any nominations i , 3

33- flor rejected for his stands on polcital issues: for merit nominations of lower court24 judies, for cil service reforms, against impeachment of President Johnson, also de-

sue of some Senators to have a southern nomilee.l .

3Withdrawn because of questons abot Williams' capabilities and financial integrity,

and his connection, as Alirney General. to the scandal ridden Grant Mmmista-lion'

0

Cushing had changed political partes several limes, attacked constitutionality of Re.constriction taws, sent indiscreet letter to Jefferson Davis in 1861 atier seces-sion I I

Matthews opposed for his clorse lies t Jay Gould and railroad interests, less impor.jantly, he was layes' brother in law and Ilayes' lawyer before the Electoral CountCommission adjudicatig the disputed 1816 Ilayes-filden vote 1 7. 1

16310 CONGRESSIONAL RECORD-SENATE June 25, 1992I. SUPREME COURT NOMINATIONS REJECTED OR WITHDRAWN, 1795-1970--Continued

Supreme Court nominee Nominating President's Senate par Retected R/pstpoeed (P/lwith- Vote Reasons for Senate oppositionpresident party drawn (W)

William iHoinbiuwer (1893) .............................. Cleveland . .................. 0 ............... I .............................................. 30- onblowe's opposition to n acthine politics in New York led to "sentoal courtesy"24 veto of nomination by New York Demoratic Sen. Hill; alse Republican far of

flmnblower's opption to protective tariffse.'.Wheeler Peckham (1893) ................................ Cleveland . D ..................... D .............. R ................................................ 41- Same reasons as with tlombiower nominaion, above),''3

32John J. Pa ker (1930) ...................................... Hoover R ...................... R .. b............. R .............................................. 41- Opposd by unions lot clo adherence to anti-lbr precndents; opposed by clvii rilhlts

39 Igodr foe racist statements made as candidate fo Governor of North Carolina in

Abe Fortas (1968) .......................................... L. Johnson D ..................... D ................ W ................. .......... ....................... ......... Se te hb te ora opposition to Warren Court. Torls' membership on Court., J n-n efectiny a lame duck In summer of 1968 (not ruoninI f rmloiatiot.''

Homer Thonbery (1968) ............................... L. Johnson D .................... W ................ W ........................................ ...... No Co t vacancy alter w...dr.aonral of Justice rotas' nominl to Chief Justlice..Clement Haynswoth (1969) ......................... Nixon ................ .................. D ................ R ................................................... 55- Criticism of rights and civil liberties record, quu tos s of financial impopd.

0. Iarnld orselt 1971.........Noo . R....... . N...............SI- f~fdloro ega quatiticatoos criticism that part statements and actions wee rac-G. Harrold Carswell (1970) ................................ Niuton ....... ..... .. R ...................... D ........... .. R ...................... ............................... 51- Mod .e le lqu h tin ; rtc sm h t p d ae e t nd a io vre i -

45 hi.1.3.

4

Henry J. Abraham, Justices and Presidents (New Yor. Penguin Books, 1915).'Philip 8. uiland. "The Appointment and Disappointment of Supreme Court Justices,' in Law and the Social Oder t1972 Aloons State Univ. Law Jouinal), No. 2. p. 183.3Rikhard D. Friedman, "The Transformatin in Senate Response to Supreme Court Nominatlions: From Reconstruclion to th Tell Administration and eyond," 5 Cardozo tew Review 1 (1983).egonald C. Lively, "the Supreme Coud Appointment Proces: In Search of Constitutional Roles and Responsibilities," 59 Southern Califonla Law Review 551 (1986).

Mr. BIDEN. In many cases, the Senate re-jected technically competent candidateswhose views It perceived to clash with thenational interest. The chart lists 26 nomina-tions rejected or withdrawn since 1789. Inonly one case, George Williams-a Grantnominee whose nomination was withdrawnin 1874-does it appear that substantive ques-tions played no role whatsoever. The restwere. in whole or in part, rejected for politi-cal or philosophical reasons.

The precedent was sot as early as 1795, Inthe first administration of George Washing-ton. And the precedent setter was none otherthan poor John Rutledge who I quoted ear-lier. Remember Rutledge? He was the onewho argued at the Constitutional Conventionthat to give the President complete controlover the Supreme Court wouli be "leaningtoo much toward monarchy." Well Old Johnwould come to wish he had not uttered thosewords.

Rutledge was first nominated to the Courtin 1790, and he had little trouble being con-firmed. As one of the principal authors of thefirst draft of the Constitution, he was clearlyqualified to judge original intent. In 1791,however, he resigned Isis seat to become chiefJustice of South Carolina, which-as our twoSouth Carolina Senators probably stillthink-ho considered a far more importantpost. But then, Chief Justice John Jay re-signed from the Supreme Court In 1795, andWashington nominated Rutledge to take hisseat. The President was so confident to aspeedy confirmation that he had the com-mission papers drawn up in advance and gavehim a recess appointment.

But that was not to be. A few weeks afterhis nomination, Rutledge attacked the JayTreaty, which Washington had negotiated toease tile last tensions of the RevolutionaryWar and to resolve a host of trade issues. Be-cause of the violent opposition of the anti-British faction, support of tile treaty was re-garded as the touchstone of true federalism.One newspaper reported that Rutledge haddeclared "he had rather the President shoulddie (dearly as he loved him) than he shouldsign that treaty." Another paper reportedthat Rutledge taid insinuated "that Mr. Jayan) tile Senate were fools or knaves, dupedby British sophistry or bribed by British gohl* * * prostituting tile dearest rights offreemen and laying them at the feet of roy-alty."

Debate raged for 5 months, anti Rutledgewas ultimately rejected, 14 to 10. To theminds of many Senators, Rutledgo's opposi-tion to the treaty called into question IisJudgment in taking such a strong position onsats Issue that polarized tile Nation. Someeven feared for his snental stability. Butmake no mistake: tise first Supreme Court

nominee to be rejected by the Senate-one oftie framers, no less-was rejected specifi-cally on political grounds. And the precedentwas firmly established that inquiry into anominee's substantive views is a proper andan essential part of the confirmation proc-ess.

Since Washington's time, the precedenthas been frequently reinforced and ex-tended-often at turning points in our his-tory. In 1811, Alexander Wolcott, a Madisonnominee, was rejected at least In large partbecause of his vigorous enforcement of em-bargo legislation and nonintercourse laws.Ills rejection was fortunate for our legal his-tory, since he later endorsed the view thatany Judge deciding a law unconstitutionalshould be Immediately expelled from theCourt.

In 1835, Roger Taney, a Jackson nominee,was opposed for much more serious and sub-stantive reasons. I will discuss the historicdetails of the Taney case later. But, for now,though, a sketch will suffice. Jackson wasattempting to undermine the Bank of theUnited States. Tanesy had been a crucial allyin his crusade, so Jackson nominated him tothe Court. Those favoring confirmationurged the Senate to consider Tanoy's con-stitutional philosophy on its own merits. "Itwould indeed be strange," said a leadingpaper in the South, "if, in selecting themembers of so august a tribunal, no weightshould be attached to the views entertainedby Its members of the Constitution, or thei'acquirements in the science of politics in itsrelations to the forms of government underwhich w, live." Thooeo opposing confirmationhad no reservation about doing so on theground tiat Taney's views did not belong ontile Court. In the end, the Whigs succeeded Indefeating the nomination by postponement,but Jacl'son bided his time and resubmittedit the following year-this time for tle seatof retiring Chief Justice Marshall.

Between the Jackson anri Lincoln Preosi-dencles, no fewer than 10 out of 18 SupremeCourt nominees failed to win confirmation.Whigs and Democrats were equally divided Intile Senate. While tine Issue of States rightsversus a nationalist philosophy inflamedsome of the debates, most of the struggleswere strictly partisan. John Tyler set a Pros-Ilential record: the Senate refused to con-firm five of iis six nominees. At one point,after the resignation of Justice Baldwin In1844, the struggle became so intense tsat aseat remained vacant for 28 months.

Twentieth century debates have boon ontile whole more civil but no less political.Tle last nominee to be rejected on exclu-sively political or philisophlcal grounds wasJohn J. Parker, a Ilerbort Iloover nominee,in 1930. And ill Parker's case, dobate focused

as much on the not impact of adding a con-servative to the Court as on the opinions ofthe nominee himself. Parker's scholarly cre-dentials wore beyond reproach. But Repub-licans, disturbed by the highly conservativedirection taken by the Court under PresidentTaft, began to organize the opposition.

Their case rested on three contentions--Ihave this right, by the way; It Is Repub-licans; and Republicans in those days weremuch more progressive In these matters, itmy perspective-first, that Parker was un-friendly to labor; second, that he was op-posed to voting rights and political partici-pation for blacks; and third, that his ap-pointment was dictated by political consid-erations.

Parker's opinions on the court of appealsdrew attention to his stand on labor activ-ism. He had upheld a "yellow dog" contractthat set as a condition of employment aworker's pledge never to join a union.

But the case for the opposition was putmost eloquently by Senator Borah of Idaho,in a speech that would be quoted for years tocome:

"[Our Justices] pass upon what we do.Therefore, It is exceedingly Important thatwe pass upon them before they decide uponthese matters."

And Senator Norris of Nebraska added, Instirring words that we would do well to re-member today:

"When we are passing on a judge * * weought not only to know whether he Is a goodlawyer, not only whether he is honest-and Iadmit that this nominee possesses both ofthose qualifications-but we ought to knowhow he approaches these great questions ofhuman liberty."

Parker was denied a seat on the Court bya vote of 41 to 39. Justice Owen Roberts, theman appointed In his place, was less weddedto the wisdom of the past: Ilis was the fa-mous "switch in time" that helped defusethe Court-packing crisis in 1937-more onthat later.

But what of our own times? In the past twodecades, three nominsees have been rejectedby the Senate-Abe Fortas, ClementHayngworth and G. Harrold Carswell-and,although there wore other issues at stake,debate In all three cases centered on theirconstitutional views as well as their profes-sional competence. I am Inserting Into theCONORnESStNAi, RECOtI) t list of the state-ments of Senators during tle Fortas andIlaynsworth hearings and debates concerningthe relevance of a nominee's substantiveviews.

I ask unanimous consent that they beprinted in tile RECOiDt.

There being no objection, tile material wasordered to be printed it tile RIecOItd, as fol-lows:

June 25, 1992 CII. STATEMEN'rs OF SENATORS CONCERNING

RELEVANCE OF NOMINEE'S SunSTANTIVEVIW---FORTAS HEARINGS AND DEBlATES

A. SINA'rORS WHO AROUEI) DIRECTLY THAT TIlEVIEWS OF TIDE NOMINEE ARE RELEVANT

Senator Baker, 114 Cong. Ree. 28258 (1968).Senator Byrd (Va.), 114 Cong. Ree. 26142

(1968).Senator Curtis, 114 Cong. Rec. 26148 (1968).Senator Ervin, Hearings on the Nomina-

tion of Abe Fortas and Homer ThornborryBefore the Senate Comm. on the Judiciary,90th Cong., 2nd Sess., at 107 (1968) [horein-after cited as 1968 Hearings],

Senator Fannin, 114 Cong. Rec. 26704, 28755(I ).

Senator Fong, 114 Cong. Roo. 28167 (1068).Senator Gore, 114 Cong. Roc. 28780 (1968).Senator Griffin, 1968 Hearings at 44.Senator Holland, 114 Cong. Rea. 26146 (1968).Senator Hollings, 114 Cong. Rec. 28163

(1968).Senator McClellan, 114 Cong. Roc. 26145

(1968).Senator Miller, 114 Cong. Roec. 23489 (1968).Senator Thurmond, 1968 Hearings at 180.1S. SENATORS WHO DEBATED THE NOMINEE'S

VIEWS

Senator Byrd (W. Va.), 114 Cong. Rec. 28785(1968).

Senator Eastland, 114 Cong. Rea. 28759(1968).

Senator Hart, 1968 Hearings at 276.Senator Javits, 114 Cong. Ree. 28268 (1968).Senator Lausche, 114 Cong. Rec. 28928

(1968).Senator Montoya, 114 Cong. Ree. 20143

(1968).Senator Murphy, 114 Cong. Roe. 28254 (1968).Senator Smathers. 114 Cong. Ree. 28748

(1968).Senator Stennis, 114 Cong. Reo. 28748 (1968).

C. SENATORS WHO ARGUED THAT THE NOMINEE'SVIEWS ARE NOT RELEVANT OR ONLY MARGIN-ALLY RELEVANTSenator Bayh, 114 Cong. Roe. 19902 (1968).Senator Mansfield, 114 Cong. Ree. 28113

(1968).Senator McGee, 114 Cong. Ree. 19638 (1968).Senator McIntyre, 114 Cong. Rec. 20445

(1968).Senator Proxmire, 114 Cong. Rec. 20142

(1968).Senator Randolph, 114 Cong. Ree. 19639

(1968).Senator Tydings, 114 Cong. Rec. 28164

(1968).Ill. STATEMENTS OF SENATORS CONCERNING

RELEVANCE OF NOMINEE'S SUIISTANTIVEVIEWs-HAYNSWORTH HEARING ANDDEBATESI90iS25JN2-361t{857 } A. SENATOR

A. SENATORS WHO ARGUED DIRECTLY THATVIEWS OF THE NOMINEE ARE RELEVANT, ORWHO DEBATED THE NOMINEE'S VIEWS

Senator Baker, 115 Cong. Rec. 34432 (1969).Senator Bayh, 115 Cong. Ree. 35132 (1969).Senator Byrd (Va.), 115 Cong. Ree. 30155

(1969).Senator Case, 115 Cong. Rec. 35130 (1969).Senator Dole, 115 Cong. Ree. 35142 (1969).Senator Eagloton, 115 Cong. Ree. 28212

(1969).Senator Ervin, Hearings on the Nomina-

tion of Clement Haynsworth Before the Sen-ate Comm. on the Judiciary, 91st Cong. 1stSess.. at 75 (1969) [hereinafter cited as 1969Hearings].

Senator Fannin, 115 Cong. Roe. 34606 (1969).Senator Goodell, 115 Cong. Roc. 32672 (1969).Senator Gurney, 115 Cong, Roe. 34439 (1969).Senator Harris, 115 Cong. Rea. 35376 (1969).Senator Hart, 1969 Hearings at 463.

ONGRESSIONAL RECORD-SENATESenator lollings, 115 Cong. Rec. 28877

(1969).Senator Javits, 115 Cong. Roe. 34275 (1969).Senator Kennedy, 1969 Hearings at 327.Senator McClellan, 1969 Hearings at 167.Senator Mathias, 1969 Hearings at 307.Senator Metcalf, 115 Cong. Rec. 34425 (1969).Senator Mondale, 115 Cong. Ree. 28211

(1969).Senator Muskie, 115 Cong. Re. 35368 (1969).Senator Percy, 115 Cong. Rec. 35375 (1969).Senator Stennis, 115 Cong. Rec. 34849 (1969).Senator Young, 115 Cong. Ree. 28895 (1969).

I. SENATORS WHO ARGUED THAT TIlE NOMINEE'SVIEWS ARE NOT RELEVANT

Senator A)lott, 115 Cong. Re. 35126 (1969).Senator Bellmon, 115 Cong. Roe, 31787

(1969).Senator Boggs, 115 Cong. Ree. 34847 (1969).Senator Cook, 115 Cong. Ree. 29557 (1969).Senator Fong, 115 Cong. Ree. 34862 (1969).Senator Hruska, 115 Cong. Rec. 2869 (1969).Senator Mundt, 115 Cong. Ree. 35371 (1969).Senator Murphy, 115 Cong. Ree. 35138 (1969).Senator Prouty, 115 Cong. Roec. 34439 (1969).Senator Spong, 115 Cong. Ree. 34444 (1969).Senator Stevens, 115 Cong. Ree. 35129 (1969).Senator Tower, 115 Cong. Ree. 34843 (1969).Senator Tydings, 1969 Hearings at 57.Mr. BIDEN. Mr. President, the list was com-

piled by three law professors in a memoran-dum prepared for several members of the Ju-diciary Committee in 1971 to address theproper scope of the Senate's Inquiry into thepolitical and constitutional philosophies ofnominees.

The tone of the recent debates was estab-lished during the hearings for JusticeThurgood Marshall in 1967. Senator Ervinsummarized the viewpoint of several Sen-ators.

"I believe that the duty which that [adviceand consent] provision of the Constitutionimposes upon a Senator requires him to as-certain as far as he humanly can the con-stitutional philosophy of any nominee to theSupreme Court."

When Justice Marshall's nominationreached the floor, the Senators who spokeagainst confirmation rested their case onwhat they saw as his activist views. SenatorStennis said: "The nominee must be meas-ured not only by the ordinary standards ofmerit, training, and experience, but his basicphilosophy must be carefully examined."And Senator Byrd of West Virginia empha-sized not only the nominee's own views butalso the effect they would have in shiftingthe balance of the Court as a whole. SenatorThurmond emphasized the importance ofbalance: "This means that it will require theappointment of two additional conservativeJustices in order to change the tenor of fu-ture Supreme Court decisions." Of the nu-merous Senators who spoke in favor of Mar-shall's confirmation, many argued that hisrecord of litigation aimed toward expandingthe rights of black Americans was a positivefactor in their decisions.

President Johnson's nomination of AbeFortas to be Chief Justice in 1968 provokedthe most protracted confirmation fight of re-cent times. There were personal as well asphilosophical Issues involved-particularlythe propriety of a lameduck nomination andof the nominee's role as confidential adviserto the Prosidentr-but his substantive posi-tions wore central to tile debate. Of the 32Senators who addressed the question, 14 ex-plicitly stated that the nominee's politicalandi constitutional views wore relevant andshould be discussed. Another 12 analyzed hisviews in explaining their own votes, imply-Ing that they regarded this consideration to

16311be relevant. Six others seemed to argue thata nominee's constitutional philosophy waseither not a proper topic for consideration bythe Senate or of only marginal relevance.

Passions were high during that debate, butfew disputed the terms of debate. Eloquentvoices on both sides of the Senate agreedthat tile nominee's views, philosophy antipast decisions were relevant to the questionof his confirmation. Senator Fannin of Ari-zona quoted Senator Borah's stirring wordsfrom the Parker debate. He also quoted a let-ter from William Rehnquist, then a younglawyer in Arizona. As early as 1959, Mr.Rehnquist had called in the Harvard LawRecord for restoring the Senate's practice"of thoroughly informing itself on the Judi-cial philosophy of a Supreme Court nomineebefore voting to confirm him."

Senator Miller of Iowa endorsed the senti-ment:

"For too long, the Senate has rubber-stamped nominations * * *. But a timecomes when every Senator should search hisconscience to see whether the exercise of theconfirming power by the Senate Is for thegood of the country."

Then Senator Thurmond rose again: "It ismy contention," he said to the Chamber,"that the Supreme Court has assumed such apowerful role as a pollcymaker in the Gov-ernment that the Senate must necessarily beconcerned with the views of the prospectiveJustices or Chief Justices as they relate tobroad issues confronting the American peo-ple, and the role of the Court in dealing withthese issues,"

Since Fortas's time, two more nomineeshave been rejected by the Senate-nomineesfor the seat that would come to be occupiedby Justice Powell. There is no need to reviewthe unhappy circumstances of the nomina-tions of Clement Hlaynsworth and G. HarroldCarswell. They are as familiar now as theywere then. But although both cases involvedquestions of ethics and competence, judicialphilosophy played a central role. In the caseof Judge Haynsworth, apparently 23 Senatorsargued for the relevance of his substantiveviews on labor law and race relations, whileat least 13 Senators took the opposite posi-tion. Senator Case of New Jersey once morelooked back to Borah: "How he approachesthese great questions of human liberty-thisfor me is the essence of the Issue in the pend-Ing nomination of Judge Haynsworth."

In the subsequent debate over G. HarroldCarswell, his views about racial equality re-ceived no less attention than his ability onthe bench. Of particular concern was his al-ways restrained, and often reversed, view ofthe scope of the 14th amendment. SenatorINOUYE took particular exception to thenominee's "philosophy on one of the mostcritical issues facing our Nation today-civilrights." And Senator Brooke of Massachu-setts argued the general proposition: "TheSenate," he said, "bears no less responsibil-Ity than the President in the process of se-lecting members of the Supreme Court * * *(Judicial competence) could not be sufficient(qualification) for a man who began his pub-lic career with a profound and far-reachingcommitment to an antluonstltutional doc-trine, a denial of the very pillar of our legalsystem, that all citizens are equal before tilelaw."

DEVELOPING TIlE PROPER STANDARDSThis, then, is the history of the Senate de-

bates. It is a rich and fractious history-al-ways entangled with the passions of tile mo-ment antli tile questions of the (lay. But al-though tile Issues under review havechanged, the terms of review have not. Until

CONGRESSIONAL RECORD-SENATE June 25, 1992recent times, few have questioned the Sen-ato's right to consider the judicial philoso-phy, as well as the judicial competence, ofnominees. The Founders Intended it and theSenate has exercised it. Over and over, theSenate has rejected nominees who possessedotherwise distinguished professional creden-tials but whose politics clashed with theSenate majority or whose judicial philoso-phies were out of step with the times orviewed as tipping the balance in the Court.

It is easy to see why the Senate has sub-jected nominees to the Supreme Court tomore exacting standards than nominees tothe lower courts, for as the highest court inthe land, the Supreme Court dictates the Ju-dicial precedents that all lower courts arebound to respect. But as the only court of noappeal, the Supreme Court itself Is the onlycourt with unreviewable power to changeprecedents. Thus, only the Senate can guardthe guardians-by attempting to engage andgage the philosophies of Justices before plac-ing them on the Court.

But to say that the Senate has an undis-puted right to consider the judicial philoso-phy of Supreme Court nominees does notmean that It has always been prudent inexercising that right. After all, some of ourmost distinguished Justices--such as HarlanFiske Stone, Charles Evans Hughes, andLouis Brandeis-have been opposed unsuc-cessfully on philosophical grounds. To say,furthermore, that political philosophy hasoften played a role in the past does not meanthat nominees' views should always play arole in the present. For there are obviouscosts to political fights over judicial nomI-noes. There are only costs to political fightsover the Supreme Court seat. As historyshows, tempers flare, factions mobilize, andthe Court, anti the country, wait for a truce.

There are costs that all of us would preferto avoih. And these are costs that I have dis-cussed before. In supporting the nominationof Justice O'Connor, whose views are moreconservative than my own, I warned of thedangers of applying political litmus tests toPresidential nominees. I agreed with JusticeO'Connor that to answer questions aboutspecific decisions would jeopardize her inde-pendence on the Court. I cautioned that ifevery Supreme Court nomination became apolitical battle, then we would run the riskof'holding the Court hostage to the Inter-necine wars of the President and Congress.And I endorsed a modern convention thathas developed in the Senate-a conventiondesigned to keep the peace. In recent times,under normal circumstances, many Membershave preferred not to consider questions ofjudicial philosophy in discharging their dutyto advise and to consent. Instead, they havebeen inclined to restrict their standards forPresidential nominees to questions of char-acter and of competence. These are the threequestions we have preferred to ask:

First. Does the nominee have the intellec-tual capacity, competence and temperamentto be a Supreme Court Justice?

Second. Is the nominee of good moral char-acter and free of conflicts of interest?

Third. Will the nominee faithfully upholdthe Constitution of the United States?

These were the questions asked by the Sen-ate when President Eisenhower nominatedJustice Brennan, when President Kennedynominated Justice White, when PresidentNixon nominated Justice Powell and whenPresident Reagan nominated Justice O'Con-nor, to name only a few recent examples.

But (luring what times and under what cir-cumstances can this narrow standard be con-fidently applied? For obvious reasons, the

narrow standard presumes a spirit of biparti-sanship between the President and the Sen-ate. It presumes that the President will en-list and heed the advice of the Senate; or itpresumes that he will make an honest effortto choose nominees from the mainstream ofAmerican legal thought; or it presumes thathe will demonstrate his good faith by seek-Ing two qualities, above all, In his nomi-nees-first, detachment and second, states-manship.

Judge Learned Hand wrote of the necessityfor detachment. He said that a SupremeCourt Justice:

"* * * must have the historical capacity toreconstruct the whole setting which evokedthe law; the contentions which it resolved;the objects which it sought; the events whichled up to it. But all this Is only the begin-ning, for he must possess the far more excep-tional power of divination which can peerinto the purpose beyond Its expression, andbring to fruition that which lay only in flow-er * * * he must approach his problems withas little preconception of what should be theoutcome as it Is given to men to have; inshort, the prime condition of his success willbe his capacity for detachment."

And Justice Felix Frankfurter wrote of thenecessity for statesmanship:

"Of course a Justice should be an out-standing lawyer in the ordinary professionalacceptance of the term, but that is the mer-est beginning. With the great men of theCourt, constitutional adjudication has al-ways been statecraft. The deepest signifi-cance of Marshall's magistracy Is his rec-ognition of the practical needs of govern-ment, to be realized by treating the Con-stitution as the living framework withinwhich the nation and the States could freelymove through the inevitable changeswrought by time and Inventions. Those of hissuccessors whose labors history has vail-dated have been men who brought to theirtask Insight into the problems of their gen-eration * * * Not anointed priests, removedfrom knowledge of the stress of life, but menwith proved grasp of affairs who have devel-oped resilience and vigor of mind throughseasoned and diversified experience In awork-a-day world-(these) are the judgeswho have wrought abldingly on the SupremeCourt)'

Detachment and statesmanship-these aredemanding standards. But they were stand-ards admirably met by retiring JusticeLewis Powell-a practicing lawyer before hisappointment to the Court. During a farewellinterview, Justice Powell sought to expresshis own vision of the responsibilities of aJustice. "I never think of myself as having ajudicial philosophy," he said. "* * * I try tobe careful, to do Justice to the particularcase, rather than try to write principles thatwill be new, or original * * *." And JusticePowell called for "a consideration of historyand the extent to which decisions of thisCourt reflect an evolving concept of particu-lar provisions of the Constitution."

When the President selects nominees onthe basis of their detachment and theirstatesmanship, with a sensitivity to the bal-ance of the Court and the concerns of thecountry, then the Senate should be inclinedto responl in kind. Individual Senators arebound to have individual objections. But atleast since I have been in the Senate, manyof us have made an effort to put aside ourpersonal biases and to support even nomi-nees with whom we were inclined to dis-agree.

But In recent years, it has struck many ofus that the ground rules have been changed.

Increasingly, nominees have boon selectedwith more attention to their judicial philos-ophy and less attention to their detachmentand statesmanship. When, and how, should aSenator respond when this happens? Con-stitutional scholars ani Senate precedentsagree that, under certain circumstances, aSenator has not only the right but the dutyto respond by carefully weighing the nomi-nee's judicial philosophy and the con-sequences for the country. What are thosecircumstances?

One circumstance Is when a President at-tempts to remake the Court in his ownimage by selecting nominees for their Judi-cial philosophy. Alone, Charles Black, a lib-eral scholar then at Yale Law School, wroteIn 1970:

"If a President should desire, and if chanceshould give him the opportunity, to changeentirely the character of the Supreme Court,shaping it after his own political image,nothing would stand in his way except theUnited States Senate * * *. A Senator, vot-ing on a presidential nomination to theCourt, not only may but generally ought tovote In the negative, if he firmly believes, onreasonable grounds, that the nominee'sviews on the large Issues of the day willmake it harmful to the country for him tosit andi vote on the Court * * *."

I think that is a very important quote.Another circumstance is when the Presi-

dent and the Senate are deeply divided, dem-onstrating a lack of consensus on the greatissues of the day. Philip B. Kurland of theUniversity of Chicago, a conservative schol-ar, wrote in 1972:

"Obviously, when the President and theSenate are closely aligned in their views,there Is not likely to be a conflict over ap-pointees. When their views are essentiallydisparate, suggesting an absence of consen-sus In the nation-a situation more likely tooccur at the time of greatest constitutionalchange-it will become the obligation of thecontending forces to reach appropriate com-promise. It should not satisfy the Senatethat the nominee is an able barrister with arecord of unimpeachable ethical conduct. Ilewho receives a Supreme Court appointmentwill engage in the governance of this coun-try."

Let me repeat that. This Is not repeated Inthe quote, but lot me repeat that part of thequote.

"He who receives a Supreme Court ap-pointment will engage in the governments ofthis country. The question for the Senate-no less than the President-is whether he isan appropriate person to wield that author-ity."

A final circumstance Is when the balanceof the Court itself is at stake. When thecountry and the Court are divided, then a de-termined President has the greatest oppor-tunity of remaking the Court in his ownimago. To protect the independence of theCourt and the Integrity of the Constitution,the Senate should be vigilant against lettinghim succeed where they disagree. During thedebate over the qualifications of ClementHlaynsworth, our former distinguished col-league and my former seatmate, SenatorMuskle of Maine spoke movingly of the Sen-ate's duty to consider the impact of a nomi-nee's views on the balance of the Court. Hesaid:

"It is the prerogative of the President. ofcourse, to try to shift the direction and thethrust of the Court's opinions in this field byhis appointments to the Court. It is my pre-rogative an(i my responsibility to disagreewith him when I believe, as I do, that such a

16312

June 25, 1992 CONGRESSIONAL RECORD-SENATEchange would not be In our country's best In-terests."

These, in sort, are some of the cir-cumstances when the Senate's right to con-sider judicial philosophy becomes a duty toconsider judicial philosophy: When the Presi-dent attempts to use the Court for politicalpurposes; when the President and Congressare deeply divided; or when the Court Is di-viied and a single nomination can bond it inthe direction of the President's political pur-poses. These are all times when the Senatehas a duty to engage the President.

In future speeches, I will attempt to sup-port my belief that all three circumstancesobtain today. But In turning to the future weshould be guided by the past. Our prede-cessors have been met with similar chal-lenges. How have they responded under fire?A COURAGEOUS SENATE VERSUS A DETERMINED

PRESIDENT: TWO FAMOUS PRECEDENTSFifty years ago, and 150 years ago, popular

Presidents committed themselves to con-troversial political agendas. In both cases,the Supreme Court had ruled parts of theagenda unconstitutional. In both cases, thePresident attempted to tilt the balance ofthe Court by politicizing the appointmentsprocess. And In both cases, a courageousSenate attempted to block the President'sefforts to bend the Court to his personalends.

The first case is one I have already out-lined-the case of Andrew Jackson's relent-less efforts to place Roger Taney on the Su-preme Court.

At its heart, the story of Andrew Jacksonand Roger Taney versus the Senate and theBank of the United States was a struggleover the broad ideological issues that splitthe fledgling Republic--a struggle betweendebtor and creditor, executive and legisla-tive, States' rights and Federal power. An-drew Jackson arrived in Washington resolvedto do battle with the the "monster" Bank. "Ihave it chained," he crowed after vetoing anattempt to recharter the Bank In 1832. "Themonster must perish," he said.

To prosecute his vendetta against theBank, Jackson sought to remove all Federalmoney from the "monster's" vaults. In late1833, Jackson summoned his Cabinet and an-nounced his resolve. By law, only Secretaryof the Treasury Louis McLane was author-ized to withdraw the funds. So Jackson com-manded McLane to act. McLane, understand-ing the law, refused. So Jackson fired thestaunch McLane and appointed WilliamDuane to take his place. As a condition ofhis appointment, Duane promised to with-draw the funds. But, once in office, his con-science got the better of him. So he went toJackson, who reminded him of his promise."A Secretary, sir," said Jackson, "is merelyan executive agent, a subordinate, and youmay say so in self defense." "In this particu-lar case," responded Duane, "Congress con-fers a discretionary power and requires rea-sons If I exercise it." Obviously, Duane wasright. The law clearly stated that Duane hadto report to Congress any decision regardingthe deposit, and Congress was in recess.Duane asked for a delay. "Not a day,"barked Jackson, "not an hour."

So Jackson fired his second Secretary.Who would carry out the executive order? InAttorney General Roger Taney, Jacksonfound a Cabinet member with a less scru-pulous view of Executive power. Jackson des-ignated Taney to take the Treasury and exe-cute the order. And Taney wasted no time.Though not yet confirmed by the Senate, heimmediately ordered the removal of funds."Executive despotismi" cried the Whigs as

soon as the Senate reconvened, and refusedto confirm his Cabinet appointment.

But the deed was done, and the Bank wasbleeding. The victory would not be complete,however, unless Jackson could tilt the bal-ance of the Supreme Court. At first, theCourt had leaned toward the Federalists inthe battle of the Bank-John Marshall hadupheld the Bank against attack by theStates as early as 1819. But, after fou' Jack-son appointments, the Court was rapidlyshifting In favor of the States. In 1835, an-other vacancy arose, and Jackson was quickto reward his loyal henchman, Taney. Butthe Whigs could not forget Taney's earlierperformance under fire. One New York papersaid that he was "unworthy of public con-fidence, a supple, cringing tool of power."

In the minds of the Whigs--many of themgiants of the Senate such as Calhoun andCrittenden, Webster and Clay-Taney's de-tachment and statesmanship were in seriousdoubt. And they defeated the nomination bypostponing consideration until the last dayof the Senate's session. Jackson was furious,and in his fury decided to bide his time. InDecember, with the resignation of Chief Jus-tice Marshall, yet another vacancy arose. Tofill the shoes of the great justice, Jacksonresubmitted the name of Taney.

Once again, the lions of the Senate roaredto the very end. Henry Clay, the "great com-promiser," was said to use every "oppro-brious epithet" in his vocabulary to fight theTaney nomination. The Whigs had no res-ervation about opposing him on the groundthat they believed his views did not belongon the Court. As Senator Borah put it, In hisclassic speech against the Parker nomina-tion in 1930:

"They opposed [Taney] for the same reasonsome of us now oppose the present nominee,because they believed his views on certainimportant matters were unsound. They cer-tainly did not oppose him because of his lackof learning, or because of his Incapability asa lawyer, for In no sense was he lacking infitness except, In their opinion, that he didnot give proper construction to certain prob-lems that were then obtaining."

But the Democrats had gained the upperhand In the Senate, and Taney became ChiefJustice by a vote of 29 to 15. Unfortunately,the Whig fears proved only too well Justified.It would be hard to imagine a more Inappro-priate successor to Chief Justice Marshallthan Chief Justice Taney. Where Marshall'sbroad reading of the Constitution was indis-pensable in strengthening the growingUnion, Tansy's narrow reading played a sig-nificant role in weakening the cohesion ofthe Union. In 1857, Tanoy wrote the infamousDred Scott decision for a divided Court. Andin refusing to read into the Constitution thepower of Congress to limit slavery in newlyadmitted States, he nullified the MissouriCompromise and helped to precipitate thegreatest constitutional crisis in our his-tory-the Civil War.

I prefer to end on a happier note. It Is an-other story of a powerful and popular Presi-(lent who attempted to bend the Court tosuit his own ends. But It is a story of couragecrowned with success. It unfolded in the Sen-ate 50 years ago, in tie summer of 1937.

America 50 years ago was a nation strug-gling against economic collapse. UnderFranklin Roosevelt's inspiring leadership,Congress and the States enacted by over-whelming majorities a series of laws to stim-ulate recovery.

But by narrow margins--5 to 4 or 6 to 3-the Supreme Court had struck down a seriesof enactments, from minimum wage laws to

agricultural stabilization acts. Representa-tive government seemed paralyzed by the in-transigence of the Court.

Moderates and progr esives--Republicansand Democrats-searched for a way tothwart the "nine old men." They proposed awide range of constitutional amendmentsand legislative limits on the Court. But Roo-sevelt was Impatient for a quick remedy, andsuspicious of indirect methods. In his view,the only way to save the Now Deal was tochange the composition of the Court itself.

Fresh from his landslide victory over AlfLandon, FDR sprang his Court-packing pro-posal: For every Justice over the age of 70who failed to retire, the President would beable to nominate a new Justice, up to a limitof 15 members on the Court. The plan hadbeen veiled In secrecy, and when Rooseveltannounced it in February 1937, it was metwith a storm of popular criticism.

Let me be clear. I am not for a momentsuggesting that President Reagan Is at-tempting to do what President Roosevelt at-tempted to do-enacting a constitutionalchange by enlarging the membership of theCourt itself. But there are Importantsimilarities as well as Important differencesbetween the Intentions of the two Presi-dents.

Both had in mind the same result. Bothsought to use their power of appointment toshift the balance of Courts that had repeat-edly rejected their social agendas. But thereis a crucial difference. While PresidentReagan has used his nominations to shift thebalance of the Court, in Roosevelt's case, theCourt shifted on its own. Before the Courtpacking bill reached the Senate floor, beforeJustice Van Dovanter's timely resignation,Justice Owen Roberts had already made hiswelcome "switch in time that saved nine"-giving Roosevelt the 5 to 4 majority that hesought.

But in May 1937, the outcome in the Senatewas anything but certain. Tie JudiciaryCommittee was controlled by the Demo-crats-loyal New Dealers. Although theysupported Roosevelt's political ends, they re-fused to allow him to pursue them throughJudicial means. In their minds, the Integrityof the Court meant more than the agenda ofthe President. On June 14, they issued a re-port condemning the Court-packing plan.The President's legislation, they concluded,demonstrated, "the futility and absurdity ofthe devious." It was an effort to "punish theJustices" for their opinions and was "an in-vasion of judicial power such as has never be-fore been attempted in this country."

But the committee report went furtherstill. Executive attempts to dominate the ju-diciary lead Inevitably to autocratic domi-nance, "the very thing against which theAmerican Colonies revolted, and to preventwhich the Constitution was In every particu-lar framed." The report concluded with afinal thundering sentence that, before theday was out, would be quoted in newspapersacross the land: "It is a measure whichshould be so emphatically rejected that itsparallel will never again be presented to thefree representatives of the free people ofAmerica."

It was a stinging rebuke to a beloved Presi-(lent-all the more remarkable In view of thefact Its authors shared his legislative goals.The British Ambassador wrote to the BritishPrime Minister:

"Seven Democratic Senators have commit-ted the unforgivable sin. They have crossedthe Rubicon and have burned their boats;and as they are not men to lead a forlornhope, one may assume that many others are

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CONGRESSIONAL RECORD-SENATE June 25, 1992substantially committed to the same action.One can only assume that tile President isbeaten."

The formal verdict was delivered on theSenate floor on July 22, 1937. Though a mean-ingless rollcall vote lay ahead, It was clearthat Roosevelt's effort to pack the Court,which for some time appeared destined tosucceed, had come to an end. Arms out-stretched, his eyes fixed on the galleries,Senator Hiram Johnson cried, "Glory be toGodl"

Let me conclude by saying that my casetoday has boon rooted in history, precedent,and common sense. I have argued that theframers entrusted the Senate with the re-sponsibility of "advice and consent" to pro-tect the independence of the judiciary. I haveurged that the Senate has historically takenIts responsibility seriously. I have arguedthat, in case after case, It has scrutinizedSupreme Court nominees on the basis oftheir political and Judicial philosophies. Ihave argued that, in case after case, It hasrejected qualified nominees, because it per-coived those views to clash with the Inter-ests of the country.

In future speeches I will make the casethat today, 50 years after Roosevelt failed,160 years after Jackson succeeded, we areonce again confronted with a popular Presi-dent's determined attempt to bond the Su-preme Court to his political ends. No oneshould dispute his right to try. But no oneshould dispute the Senate's duty to respond.

As we prepare to disagree about the sub-stance of the debate, let no one contest theterms of the debate-let no one deny ourright and our' duty to consider questions ofsubstance in casting our votes. For thefounders themselves intended no less.

I thank the Chair and thank my colleaguesfor their indulgence.

Mr. BIDEN. Mr. President, at thetime I first sot forth this notion duringthe Bork confirmation debate it was awidely controversial notion; that is,that we, as well as the President, had aright to look at ideology. Yet scholarlyworks reaffirmed by the recent articlesof Prof. David Strauss and CassSunstein have always found a solidbasis for this view In the intentions ofour Framers and in the history of ourNation.

In my view, the debate over the Sen-ate's review of ideology has been fruit-ful. We have quashed the myth that tileSenate must defer to a President'schoice of a Supreme Court Justice, tilemen and women at the apex of theindependent third branch of Govern-ment. As tile Senate properly does fornominees in the executive branch, therole of the Senate as a vital partner inreviewing Supreme Court nominationshas been enhanced. And the debateover this role caused even those whowere initially skeptical, like Prof.Henry Monaghan, who outlined thegrounds for his conversion in a 1988 ar-ticle in the Harvard Law Review, tojoin in the broad consensus over thepropriety of more active Senate par-ticipation in the process.

More fundamentally, Mr. President,the serious and profound debate thatthe Bork nomination sparked wasamong the most important nationaldiscussions about our Constitution, its

meaning, and the direction of our Su-preme Court in this century.

Before the Bork confirmation fight,the legacy of the Warren court wasseen as tenuous by scholars and was Illsupported by the public. The legalright thought that judicial activismwas a rallying cry that would moveAmerica against the Court's projectionof protection of personal freedoms, itsone person/one vote doctrine, and otherprogressive decisions that the legalright thought had no popular supportand less legal foundation.

And the legal left, prior to the Borkfight, feared that the right might becorrect in its assessment of popularopinion; that is, that the Warren courtand its major decisions were not popu-larly supported. But the public reac-tion to Judge Bork's views, its rejec-tion to the right's legal philosophy andjudicial notions, proved just the oppo-site.

And while some aspects of the War-ren Court decisions remain under as-sault, particularly in the area of crimi-nal law, others have been irrevocablysecured in the hearts and minds ofmost Americans, such as the Court'srecognition of the right to privacy, aright that, if you recall, Mr. President,prior to the Bork fight, the ideologicalright in this country thought was notsupported by Americans.

This could not have been said beforethe Bork confirmation fight. And yet itcan be safely proclaimed today thatAmericans--Americans-strongly sup-port the right to privacy, and find thatthere is such a right protected in theConstitution. Nor do I limit the successof this process to the Bork rejectiononly. I am equally satisfied, albeit fordifferent reasons, as to how the processfunctioned in approving Justices Ken-nedy and Souter.

As I said when I supported their con-firmations, neither man is one whom Iwould have chosen had I been Presi-dent. But each reflects a balanced se-lection, a nonideological conservativethat stands between the White Housephilosophy and the Senate.

I might just note parenthetically, inthe decision yesterday on school pray-er, or prayer before convocations inpublic schools, Justices Souter andKennedy took a position diametricallyopposed to that that has been profferedby this administration and the pre-vious one for the past 11 years.

While I have disagreed with some ofthe decisions by each of these two Ju-rists, I know that President Bush mustsay tile same thing: That he disagreeswith some of the decisions of the twomen, Kennedy and Souter. But I offerthem as examples, Mr. President; thatboth men have issued some opinionsthat I sharply reject. But in a period ofdivided Government, both from theCourt of compromise, candidates whoare appropriate for consideration andwhose confirmations I supported.

In my view, the contemporary con-firmation process functioned well in re-jecting Judge Bork and in approvingJustices Kennedy and Souter. And yet,sadly, even in so succeeding, one couldsee within the process the seeds of anexplosion that was to come with theThomas nomination and the destruc-tive forces that were going to tear itapart.

As I said earlier, the root of the cur-rent collapse of the confirmation proc-ess is the administration's campaign tomake the Supreme Court an agent ofan ultraright conservative social agen-da which lacks support in the Congressand in the country.

I would just point out again, par-enthetically, Mr. President, that theentire social agenda of the Reagan ad-ministration has yet to be able to gaina majority support in the U.S. Senateor the U.S. House of Representatives,or among the American people over thepast 11 years. So failing the ability todo that, both Presidents have con-cluded, and did conclude, that the ave-nue to that change was to remake theCourt.

In describing how the reactors of dif-ferent forces and factions have broughtabout the difficulty we now have toface, I do not want anybody to losesight of the fact that it is the adminis-tration's nomination agenda that isthe root cause of this dilemma. That is,if you will, the original sin which hascreated all of the problems that plaguethe process today: The administra-tion's desire to placate the rightwingof its party, which is driven by a singleissue-overturning Roe versus Wade.

To the members of this Republicanfaction, no more conservative such asJustice O'Connor or Justice Powell issafe, to use the word they often use.The administration has urged us toreach for a Scalia, a Bork, a Thomas.But if this is the original sin behind to-day's woes, it is not the only cause ofthe confirmation deadlock. And hereare three consequences of the Reagan-Bush nomination strategy that havecontributed to the problem.

First, Democrats and moderate Re-publicans have placed it into the handsof tile Republican right by acceptingRoe as the divining rod in reverse,making a nominee's views or refusal tostate his views on this question theoverriding concern in the confirmationprocess.

Yet, in enjoying the right to permittile single issue to dominate the de-bate, tile center and the left have lostsight of the fact that nominees are cho-son by Republicans, ultraconservatives.They tend to embrace other constitu-tional and jurisprudential views unre-lated to abortion, but equally at thefat' end of the spectrum.

To put it another way, the center andtile left, which won such broad publicsupport for the position against JudgeBork's nomination, have allowed them-

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June 25, 1992 Csolves to be divided as single-issue par-ticipants.

This has given rise to oven more frus-tration about the process from bothparticipants and observers, and wasone cause for the schism that emergedin the Thomas confirmation debate.Moreovor, the focus on Roe preventsthe committee from exploring many le-gitimate issues in our hearing, becausequestions about the nominees on manymatters, from the cutting-edge issue ofthe right to privacy to the age-oldlegal doctrine of stare decisis, are im-mediately assumed by all those whoobserved tie process to be covert ques-tions about abortion when they havenothing to do with abortion.

Among the most frustrating aspectsof the Souter and Thomas hearings wasthat when I tried to question the nomi-nees on whether they thought individ-uals had a right to privacy, everyone-the press, the public, the nominees, mycolleagues--thought that I was tryingto ask about abortion in disguise, nomatter how many times I said, truth-fully and frankly, and I quote:

No; forgot about abortion. To know howyou will face the many unknown questionsthat will confront the Court into the 21stcentury, I must know whether or not youthink Individuals have a right to privacy.

No matter how many times I in-sisted, everyone believed I was askingabout abortion. That is just how pow-erfully the issue dominates our proc-ess.

(Mr. KOHL assumed the chair.)Mr. BIDEN. Second, in the period be-

tween the Bork and tie Thomas nomi-nations, there developed what could becalled an unintended "conspiracy of ex-tremism," between the right and theleft, to undermine the confirmationprocess, and question the legitimacy ofits outcomes.

Simply put, the right could not ac-cept that any process which resulted inthe rejection of Judge Bork was fair orlegitimate. Notwithstanding tie con-temporaneous declaration of many Re-publican Senators that the hearingsand process for handling the Bork nom-ination were fair, a subsequent mythol-ogy has developed that claims other-wise.

We are told that tie hearings weretilted against Bork, but there weremore witnesses who testified for himthan appeared in opposition. I haveheard his defeat blamed on schedulingof the witnesses. Well, we simply alter-nated, pro-con, pro-con, panel afterpanel.

And tie list of excuses goes on andon. It was the camera angle, they said,the beard, the lights, the timing-allunfair, all engaged in by those who op-posed Bork to bring him down.

In sum, the conservative wing of theRepublican Party has never acceptedthe cold, hard fact that tie Senate re-jected Judge Bork because his viewscame to be well understood, and wore

ONGRESSIONAL RECORD-SENATE

considered unacceptable. Arid becausethis rejection of their core philosophyis inconceivable to the legal right, theyhave been on a hunt for villains eversince.

They have attacked the press, as in arecent, intemperate speech by a con-servative Federal judge bashing twoNow York Times reporters who areamong the finest to cover SupremeCourt hearings. But most of all, thesemovement conservatives have attackedthe confirmation process itself, and theSenate for exorcising its constitutionalduties to conduct it.

But it does not stop there, Mr. Presi-dent.

At the same time, the left, too, hasclothed its frustration with its inabil-ity to persuade the American public ofthe wisdom of its agenda, in angerabout the confirmation process as well.

The left has refused to accept thefact that when one political branch iscontrolled by a conservative Repub-lican, and the other has its philosophi-cal fulcrum resting on key SouthernDemocrats, who hold the balance onclose votes in the Senate, it is inevi-table that the Court is going to growmore conservative. Acceptable can-didates must be found among thosewho straddle this ideological gulf, suchas Justices Kennedy and Souter, whowere approved by a combined total of188 to 9 in the Senate.

The left, Mr. President, is frustratedbecause a conservative President and aSenate, whore the fulcrum is held byconservative Southern Democrats, isnot going to nominate a Justice Bren-nan, who, I think, was a great Justice,and we should find people to replacehim ideologically. They refuse to ac-cept reality, Mr. President, just as theright refuses to accept the reality of aBork defeat.

Bork was defeated because his viewsof what he thought America should be-come were different than those held bythe vast majority of Americans and anoverwhelming majority of Senatorsand had not a whit to do with whetheror not he had a beard, a camera angle,an ad by an outside group, or the orderof witnesses.

So, Mr. President, the confirmationprocess has thus become a convenientscapegoat for ideological advocates ofcompeting social visions--advocatcswho have not been able to persuade thegenerally moderate American public ofthe wisdom of either of their viewswhen framed in the extreme. In effect,then, Mr. President, these advocateshave joined in an ad hoc alliance, theextreme right and the extreme left, toundermine public confidence in a proc-ess aimed at moderation--hoping, per-haps, to foment a great social and cul-tural war in which one or the otherwill prevail.

The third problem, Mr. President, isthe confirmation process has boon in-fected by the general meanness and

16315nastiness that pervades our politicalprocess today. While I believe theyplayed little or no role in the outcome,the inaccurate television ads that wererun against Judge Bork's confirmationonly taunted increasingly cutting re-sponses from the right.

The Thomas nomination included alevel of personal bitterness that maybe typical of our modern political cam-paigns but is destructive to any processdependent upon consensus, as is theconfirmation process. After the nomi-nation was announced, one of the oppo-nents of Judge Thomas outside theSenate threatened to "Bork him"-amenacing pledge that served no pur-pose. And then, as the hearings wereabout' to begin, the same conservativegroup that produced the infamousWillie Horton ads ran television com-mercials attacking members of the Ju-diciary Committee, including myself,with the intent to intimidate-andthey so stated-intimidate our reviewof the nomination.

I find it ironic, Mr. President, thatwe could recognize the cost-if not findthe answers-for this nastiness in thecontext of Presidential elections, butlack the same insight with respect tothe confirmation process.

Many of the same voices who havecriticized the committee for not goinghard enough after allegations thatJudge Thomas had improper travel ex-penses, spitefully transferred a whistle-blower at EEOC, or was friends with aproapartheid lobbyist-many of thesecritics of our committee are among thefirst to bemoan the fact that the Presi-dential campaign of 1992 has beendominated by questions of personalwrong-doing instead of the real issues.

We cannot have it both ways.I, too, believe that the Nation would

be better off if the current campaignwas centered on disputes over publicpolicy rather than gossip about maritalfidelity and marijuana use. But I mustsay that the same is true about our re-view of Supreme Court nominees: theNation is enriched when we exploretheir jurisprudential views; it is d-based when we plow through their pri-vate lives for dirt.

As with Presidential campaigns, thepress-perhaps because it is easier, per-haps because it sells papers-has toooften focused their coverage of Su-preme Court nominees on such gossipand personal matters, rather than onthe substantial-but difficult--task oftrying to discern their philosophy andtheir ideology, because it is their phi-losophy and their ideology that will af-fect how I am able to live my life, howmy children will be able to live theirlives, not whother or not when theywore 17 years old they smoked mari-juana, or anything else.

Lot me make it clear, here, that I amnot now speaking of Professor Hill's al-legations against Judge Thomas, whichwere certainly serious and significant

CONGRESSIONAL RECORD-SENATE June 25, 1992enough to merit the full investigationthat the committee conducted, bothbefore and after their public disclosure.Rather, I am speaking of the numerouslesser allegations against nomineesBork, Kennedy, Souter, and Thomaswhich the most extreme committeecritics say we have done too little topursue.

Some examples of what these criticswanted to see us delve into come tomind: Judge Bork had his video rentalrecords exhumed and studied for pos-sible rental of pornographic films.Judge Souter has his marital statusquestioned and felt obligated toproduce ex-girlfriends to testify to hisvirility. Judge Thomas was assaultedby a whispering campaign that spreadunsubstantiated rumors of about thecause of the end of his first marriage.

Each time, the airing of thesecharges enraged Republican allies ofthese nominees, who considered thecharges unfair and a violation of theirright to privacy. And each time, whenthe committee-at my direction-re-fused to explore these tawdry rumors,the more extreme critics of our processgrew more and more frustrated withthe results.

This was another tension which cameto a head during the Thomas nomina-tion, and which exploded when Profes-sor Hill's charges were made public.

To sum up, then: The confirmationprocess launched in 1987-an attemptto provide a means for dealing with theReagan-Bush campaign to transformthe Supreme Court ideologically at atime when those ideological viewslacked public support-has been tornasunder. The process lacks the sort ofbroad-based support that could make itwork, and its credibility has been slow-ly eroded by the criticism it has re-ceived from both liberal and conserv-ative ideologues.

A legitimate process that was builtin good faith to identify and confirmconsensus nominees has been destroyedby many of the same corrosive influ-ences that have so devastated our Pres-idential politics and our national dia-log on public affairs.

Consequently, it is my view that-particularly if the reality of dividedgovernment during a time of greatchange at the Court continues in thenext administration-future confirma-tions must be conducted differentlythan the preceding ones. The pressuresand tensions on the existing process-which exploded during the Thomasnomination fight--make a restorationof what came before Judge Thomas'nomination-even if it was desirable-apractical impossibility.

THE UNIQUV HISTORY OF ELECTION YEARNOMINATIONS

Having said that, we face one imme-diate question: Can our Supreme Courtnomination and confirmation proc-esses, so racked by discord and bitter-ness, be repaired in a Presidential elec-

tion year? History teaches us that thisis extremely unlikely,

Some of our Nation's most bitter andheated confirmation fights have comein Presidential election years. Thebruising confirmation fight over RogerTaney's nomination in 1836; the Sen-ate's refusal to confirm four nomina-tions by President Tyler in 1844; thesingle vote rejections of nomineesBadger and Black by lameduck Presi-dents Fillmore and Buchanan, in themid-19th century; and the narrow ap-provals of Justices Lamar and Fuller in1888 are just some examples of thesefights in the 19th century.

Overall, while only one in four Su-preme Court nominations has been thesubject of significant opposition, thefigure rises to one out of two whensuch nominations are acted on in Pres-idential election years.

In our own century, there are twoparticularly poignant cases. The 1916confirmation fight over Louis D. Bran-deis, one of America's great jurists-afight filled with mean-spirited anti-Se-mitic attacks on the nominee-is anexample of how election year politicscan pollute Senate consideration of adistinguished candidate. And the 1968filibuster against Abe Fortas' nomina-tion-an assault that was launched by19 Republican Senators, before Presi-dent Johnson had even named Fortasas his selection-is similarly wellknown by all who follow this.

Indeed, many pundits on both the leftand the right questioned our commit-tee's ability to fairly process the Borknomination-a year before the 1988campaign-without becoming entan-gled in Presidential politics. While Ibelieve this concern was misplaced,and ultimately disproved, it illustrateshow fears of such politicization can un-dermine confidence in the confirmationprocess.

Moreover, the tradition against act-ing on Supreme Court nominations in aPresidential year is particularly strongwhen the vacancy occurs in the sum-mer or fall of that election season.

Thus, while a few Justices have beenconfirmed in the summer or fall of aPresidential election season, such con-firmations are rare-only five times inour history have summer or fall con-firmations been granted, with the lat-est--the latest-being the August 1846confirmation of Justice Robert Grier.

In fact, no Justice has ever been con-firmed in September or October of anelection year-the sort of timing whichhas become standard in the modernconfirmation process. Indeed, in Amer-ican history, the only attempt to pushthrough a September or October con-firmation was the failed campaign toapprove Abe Fortas' nomination in1968. I cannot believe anyone wouldwant to repeat that experience in to-day's climate.

Moreover, of the five Justices whowere confirmed in the summer of an

election year, all five were nominatedfor vacancies that had arisen before thesummer began. Indeed, Justice Grier'sAugust confirmation was for a vacancyon the Court that was more than 2years old, as was the July confirmationof Justice Samuel Miller, in 1862.

Thus, more relevant for the situation wecould be facing in 1922 is this statistic: sixSupreme Court vacancies have occurred Inthe summer or fall of a Presidential electionyear, and never-not once-has the Senateconfirmed a nominee for these vacancies be-fore the November election,

In four of these six cases-in 1800,1828, 1864, and 1956-the President him-self withheld making a nominationuntil after the election was held.

In both of the two instances wherethe President did insist on naming anominee under these circumstances,Edward Bradford in 1952 and AbeFortas in 1968, the Senate refused toconfirm these selections.

Thus, as we enter the summer of thePresidential election year, it is time toconsider whether this unbroken stringof historical tradition should be bro-ken. In my view, what history sup-ports, common sense dictates in thecase of 1992. Given the unusual rancorthat prevailed in the Thomas nomina-tion, the need for some serious reevalu-ation of the nomination and confirma-tion process and the overall level ofbitterness that sadly infects our politi-cal system and this Presidential cam-paign already, it is my view that theprospects for anything but conflagra-tion with respect to a Supreme Courtnomination this year are remote atbest.

Of Presidents Reagan's and Bush'slast seven selections of the Court, twowere not confirmed and two more wereapproved with the most votes castagainst them in the history of theUnited States of America.

We have seen how, Mr. President, inmy view, politics has played far toolarge a role in the Reagan-Bush nomi-nations to date. One can only imaginethat role becoming overarching if achoice were made this year, assuming aJustice announced tomorrow that he orshe was stepping down.

Should a Justice resign this summerand the President move to name a suc-cessor, actions that will occur justdays before the Democratic Presi-dential Convention and weeks beforethe Republican Convention meets, aprocess that is already in doubt in theminds of many will become distrustedby all. Senate consideration of a nomi-nee under these circumstances is notfair to the President, to the nominee,or to the Senate itself.

Mr. President, where the Nationshould be treated to a consideration ofconstitutional philosophy, all it willget in such circumstances is partisanbickering and political posturing fromboth parties and from both ends ofPennsylvania Avenue. As a result, it is

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June 25, 1992 Cmy view that if a Supreme Court Jus-tice resigns tomorrow, or within thenext several weeks, or resigns at theend of the summer, President Bushshould consider following the practiceof a majority of his predecessors andnot-and not-name a nominee untilafter the November election is com-pleted.

The Senate, too, Mr. President, mustconsider how it would respond to a Su-preme Court vacancy that would occurin the full throes of an election year. ItIs my view that if the President goesthe way of Presidents Fillmore andJohnson and presses an election-yearnomination, the Senate Judiciary Com-mittee should seriously consider notscheduling confirmation hearings onthe nomination until after the politicalcampaign season is over.

I sadly predict, Mr. President, thatthis Is going to be one of the bitterest,dirtiest, Presidential campaigns wewill have seen in modern times.

I am sure, Mr. President, after hav-ing uttered these words some will criti-cize such a decision and say it wasnothing more than an attempt to savethe seat on the Court in the hopes thata Democrat will be permitted to fill it,but that would not be our intention,Mr. President, if that were the courseto choose in the Senate to not considerholding hearings until after the elec-tion. Instead, it would be our prag-matic conclusion that once the politi-cal season is under way, and it is, ac-tion on a Supreme Court nominationmust be put off until after the electioncampaign is over. That is what is fairto the nominee and is central to theprocess. Otherwise, it seems to me, Mr.President, we will be in deep trouble asan institution.

Others may fret that this approachwould leave the Court with only eightmembers for some time, but as I see it,Mr. President, the cost of such a result,the need to reargue three or four casesthat will divide the Justices four tofour are quite minor compared to thecost that a nominee, the President, theSenate, and the Nation would have topay for what would assuredly be a bit-ter fight, no matter how good a personis nominated by the President, if thatnomination were to take place in thenext several weeks.

In the end, this may be the onlycourse of action that historical prac-tice and practical realism can sustain.Similarly, if Governor Clinton shouldwin this fall, then my views on theneed for philosophic compromise be-tween the branches would not be soft-ened, but rather the prospects for suchcompromise would be naturally en-hanced. With this in mind, let me startwith the nomination process and howthat process might be changed in thenext administration, whether it is aDemocrat or a Republican.

It seems clear to me that within theBush administration, the process of so-

ONGRESSIONAL RECORD-SENATE

lecting Supreme Court nominees hasbecome dominated by the right intenton using the Court to implement an ul-traconservative social agenda that theCongress and the public have rejected.In this way, all the participants in theprocess can be clear well in advance ofhow I intend to approach any futurenominations.

With this in mind, let me start withthe nomination process and how thatprocess might be changed in the nextadministration, and how I would urgeto change it as chairman of the Judici-ary Committee were I to be chairmanin the next administration.

It seems clear to me that within theBush administration, as I said, theprocess has become dominated by theright instead of using the Court andseeking compromise. As I detailed dur-ing the hearings and the subsequentnomination debate over Judge Thomas'nomination, this agenda Involveschanging all three of the pillars of ourmodern constitutional law. And Imight add, the President has a right tohold these views, Mr. President, andthe President has a right to try tomake his views prevail, legislativelyand otherwise. But let us make sure weknow, at least from my perspective,what fundamental changes are beingsought.

There are three pillars of modernconstitutional law that are sought tobe changed. First, it proposes to reducethe high degree of protection that theSupreme Court has given individualrights when those rights are threat-ened by governmental intrusion, im-periling our freedom of religion,speech, and personal liberty-and I amnot just talking about abortion.

Second, it proposes, those who sharethe President's view for this radicalchange, to vastly increase the protec-tion given to the interest of propertywhen our society seeks to regulate theuse of such property, imperiling lawsconcerned with the environment, work-er safety, zoning, and consumer protec-tion.

And the third objective that issought is to change a third pillar ofmodern constitutional law. It proposesto radically alter the separation ofpowers, to move more power in ourthree branches of Government, dividedGovernment, separated Government, tomove more power to the executivebranch, imperiling the bipartisan, inde-pendent regulatory agencies and themodern regulatory State.

As I noted before, efforts to trans-form the confirmation process into agood-faith debate over these philo-sophic matters, as was the Bork con-firmation process, have been thwartedby extremists in both parties. Theseare legitimate issues to debate. Thosewho hold the view that we shouldchange these three modern pillars ofconstitutional law have a right to holdthese views, to articulate them and

16317have them debated before the Amer-ican people. But this debate has beenthwarted by extremists in both partiesand cynics who have urged nominees toattempt to conceal their views to thegreatest extent possible. And the Presi-dent, unwilling to concede that hisagenda in these three areas is at oddswith the will of the Senate and theAmerican people seems determined tocontinue to try to remake the Courtand thereby remake our laws in this di-rection.

In light of this, I can have only oneresponse, Mr. President. Either wemust have a compromise in the selec-tion of future Justices or I must opposethose who are a product of this ideo-logical nominating process, as is theright of others to conclude they shouldsupport nominees who are a product ofthis process.

Put another way, If the Presidentdoes not restore the historical tradi-tion of genuine consultation betweenthe White House and the Senate on theSupreme Court nomination, or insteadrestore the common practice of Presi-dents who chose nominees who strodethe middle ground between the dividedpolitical branches, then I shall opposehis future nominees immediately upontheir nomination.

This is not a request that the Presi-dent relinquish any power to the Sen-ate, or that he refrain from exercisingany prerogatives he has as President.Rather, it is my statement that unlessthe President chooses to do so, I willnot lend the power that I have in thisprocess to support the confirmation ofhis selection.

As I noted before, the practice ofmany Presidents throughout our his-tory supports my call for more Execu-tive-Senate consultations. More fun-damentally, the text of the Constitu-tion Itself, its use of the phrase "adviceand consent" to describe the Senate'srole in appointments demands greaterinclusion of our views in this process.While this position may seem conten-tious, I believe it is nothing more thana justified response to the politicizingof the nomination process.

To take a common example, thePresident is free to submit to Congressany budget that he so chooses. He cansubmit one that reflects his conserv-ative philosophy or one that straddlesthe differences between his views andours. That is his choice. But when thePresident has taken the former course,no one has been surprised or outragedwhen Democrats like myself have re-sponded by rejecting the President'sbudget outright.

If the President works with a philo-sophically differing Senate or he mod-orates his choices to reflect the diver-gonco, then his nominees deserve con-sideration and support by the Senate.But when the President continues toignore this difference and to picknominees with views at odds with the

CONGRESSIONAL RECORD-SENATE June 25, 1992constituents who elected me with aneven larger margin than they electedhim, then his nominees are not entitledto my support in any shape or form.

I might note parenthetically, Mr.President, and lot me be very specific,if in this next election the Americanpeople conclude that the majority ofdesks should be moved on that side ofthe aisle, there should be 56 RepublicanSenators instead of 56 Democratic Sen-ators, 44 Democratic Senators insteadof 56 or 57 Democratic Senators, and atthe same time if they choose to pickBill Clinton over George Bush, we willhave a divided Government and I willsay the same thing to Bill Clinton: Ina divided Government, he must seekthe advice of the Republican Senateand compromise. Otherwise, this Re-publican Senate would be totally enti-tled to say we reject the nominees of aDemocratic President who is attempt-ing to remake the Court in a way withwhich we disagree.

As I say, some view this position ascontentious, while others, I suspect-infact, I know, and the Presiding Officerknows as well as I do-will say that Iam not being contentious enough. Theysuggest that since the Court has movedso far to the right already, it is toolate for a progressive Senate to acceptcompromise candidates from a conserv-ative administration. They wouldargue that the only people we shouldaccept are liberal candidates, whichare not going to come, nor is it reason-able to expect them to come, from aconservative Republican President.

But I believe that so long as the pub-lic continues to split its confidence be-tween the branches, compromise is theresponsible course both for the WhiteHouse and for the Senate. Therefore, Istand by my position, Mr. President. Ifthe President consults and cooperateswith the Senate or moderates his selec-tions absent consultation, then hisnominees may enjoy my support as didJustices Kennedy and Souter. But if hedoes not, as is the President's right,then I will oppose his future nomineesas is my right.

Once a nomination is made, the eval-uation process begins, Mr. President.And here there has been a dramaticchange from the Bork nomination in1987 to the Thomas nomination in 1991.

Let met start with this observation.In retrospect, the actual events sur-rounding the nomination of JudgeBork have been so misremembered thatobservers have completely overlookedone great feature of these events. Thatis, in most respects, the Bork nomina-tion served as an excellent model forhow the contemporary nomination andconfirmation process and debate shouldbe concluded and conducted.

Shortly after Judge Bork was nomi-nated, after studying his records,writings and speeches, I announced myopposition to his confirmation and sev-eral other members of the committee

did the same. What ensued was, Ithink, an educational and enlighteningsummer.

I laid out the basis for my position intwo major national speeches and otherSenators did likewise. The White Houseissued, as they should have, a very de-tailed paper proposing to outline JudgeBork's philosophy; a group of respec-tive consultants to the committee is-sued a response to this White Housepaper; and the administration put outa response to that response.

While there were excesses in this de-bate, as I mentioned earlier, by andlarge, it was an exchange of views andideas between two major constitutionalplayers in this controversy, the Presi-dent and the Senate, which the Nationcould observe and then evaluate.

The fall hearing then was significant,not as a dramatic spectacle to see howSenators would jockey for position onthe nomination but to see the final actof this debate. Unfortunately, though,those of us who announced our earlyopposition to Judge Bork were roundlycriticized by the media. Major news-papers accused me of rendering the ver-dict first and trial later for the nomi-nee. I say that this was unfortunate be-cause this criticism of our early posi-tion on the Bork nomination has re-sulted in, as I see it, four negative con-sequences for the conformation proc-ess.

First, it gave rise to a powerful my-thology that equates confirmationhearings to something closer to trialsthan legitimate legislative proceed-ings. The result has been in the endeven more criticism for the processwhen the hearings do not meet this ar-tificial standard of a trial.

Confirmation hearings are not trials.We are not a court; we are a legislativebody. They are congressional hearings.Senators are not judges. We are Sen-ators. Our decision on a nominee is nota neutral ruling as a judge wouldrender. It is, as the Constitution de-signed it, a political choice about val-ues and philosophy.

We should junk, Mr. President, thistrial mythology and the attendantmatters that go with it. Arcane de-bates over which way the presumptiongoes in the confirmation process, overwhat the standard of review is, overwhich side has the burden of proof, allof these terms and ideas are inept forour decisionmaking on confirmation asthey are for our decisionmaking onpassing bills or voting on constitu-tional amendments.

We do not apply a trial mythology inthose circumstances, Mr. President.

Second, a second unintended and un-fortunate consequence of the criticismof early opposition based on specifi-cally stated reasons: The criticism oftaking early stands on nominees haspushed Senators out of the summer do-bate over confirmation and left thatdebate to others, most especially the

interest groups on the left and theright. Instead of respected Senators onthe left and the right, arguing prior tothe hearing about the philosophy of thenominee, when we stood back, thatvacuum was filled, Mr. President, bythe left and the right as is their right,I might add. But they are the onlyvoices that we heard in the debate.They shaped the debate, Mr. President.

Instead of an exchange of ideas then,the summer becomes Washington at itsworst. The nominee hunkers down withbriefers at the Justice Department pre-paring for the hearing as a footballteam prepares for a game, watchingfilms of previous hearings, studyingthe mannerisms of each Senator,memorizing questions that have beenasked, practicing and rehearsing non-answers. Outside, the two branches'busy efforts are underway to from coa-litions, launch TV attack campaigns,issue press releases, and shout loudlypast one another.

This transformation hit its peak dur-ing the Thomas nomination when bymy count, there were twice as manysummer news stories about how inter-est groups were lining upon the nomi-nation than there were about the nomi-nee's views. As with our Presidentialcampaigns, public attention in the pro-hearing period has been turned awayfrom a debate by principles about realissues into a superficial scrutiny of ahorse race. Is the nominee up; is thenominee down today? And discussionsamong spin doctors, insiders, and pun-dits about what the chances are.

The only way to move the focus fromthe tactics of the confirmation debateto the substance of it is for Senators totake our position on a nomination, ifpossible, assuming we know the factsof the philosophy, or believe we knowthe facts relating to the philosophy ofthe nominee, and debate them freelyand openly before the hearing processbegins.

Where Senators remain undecidedabout the nomination, I hope more willdo what I did with the Souter andThomas nominations, and try to pub-licly address the issues of concern forconfirmation before the hearings getunderway; to stand on the floor and sayI do not know where the nomineestands on such and such but what Iwant to know as a Senator is, what ishis or her philosophy on. Whatever it isthat is of concern to the IndividualMember, begin the debate on the issuesbecause, when we do not, we havelearned this town, the press, interestgroups, and political parties fill thevacuum. The notion of 3 months of si-lence in Washington is something thatis not able to be tolerated by most wholive in Washington, and who work inWashington.

So what happens? The vacuum isfilled, Mr. President, by pundits, lobby-ing groups, interest groups, ideologicalfringes, to define the (iebate anti dictat-ing the tactics.

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Third, Mr. President, the tabooagainst early opposition to a nomineehas created an imbalance in the pro-hearing debate over the confirmation,for it seems that no similar taboo ex-ists against prehearing support for anominee.

I have not read a single article, hearda single comment, that when "SenatorSmedlap" stands up and says I supportthe nominee that the President named27 seconds ago, no one says, now, thatis outrageous; how can that woman orman make that decision before thehearing? They all say, oh, that is OK.It is OK to be for a nominee before thehearing begins, but not to be againstthe nominee.

In the case of Judge Thomas, whileno Senator announced his opposition toconfirmation before the hearing start-ed, at least 30 Senators announcedtheir support for the nominee beforethe committee first met.

No Senator said, "I am opposed."Thirty Senators said they were for, asis their right, by the way. I am notcriticizing that. Thus, my good friend,Senator RUDMAN for Judge Souter, andSenator DANFORTH for Judge Thomas,along with many other Senators be-came outspoken advocates, as is theirright and as they firmly believed be-came outspoken advocates for the con-firmation from day one, while not asingle Senator spoke in opposition.

In my view, such an imbalance isunhealthy and again puts too much re-sponsibility for and control over theconfirmation debate in the hands of in-terest groups instead of elected offi-cials.

Fourth, and perhaps least obvious,the taboo against early opposition to anominee, assuming that a Senatorknows enough to be opposed, has con-tributed to making the confirmationhearing far too significant, making theconfirmation hearing a far too signifi-cant forum for evaluating the nominee.

Conservative critics of the modernhearing process often note that for thefirst 125 years of our history-and theyare correct-we reviewed SupremeCourt nominations without confirma-tion hearing. Yet what we ignore isthat the rejection rate of nominees inthe first 125 years of our history waseven higher and the grounds of rejec-tion far more partisan and far lessprincipled than it has been since thehearing process began.

In my view, Mr. President, confirma-tion hearings, no matter how long, howfruitful, how thorough, how honest-nomatter what-confirmation hearingscannot alone provide a sufficient basisfor determining if a nominee merits aseat on our Supreme Court.

Let me say that again. In my view,confirmation hearings, no matter howlong, how fruitful, how thorough, can-not alone provide a sufficient basis fordetermining if a nominee merits a seaton our Supreme Court.

59-4,4) 0-97 Vol. IM (Pt. 12) 41

Here again the burden of the trialanalogy unfortunately confuses therole of the hearing process instead ofelucidating it. As they did before therewere confirmation hearings, Senatorsand the public should base their deter-mination about a nominee on his or herrecord of service, writings, and speech-es, background collection and inves-tigations, a review of the nominee's ex-perience in credentials and the weigh-ing of the views of the nominee's peersand colleagues. Put another way: Wehave hearings not to prove a caseagainst a nominee but, rather, in an ef-fort to be fair to the nominee, and togive that nominee the chance to ex-plain his or her record and writings be-fore the committee. Thus the hearingscan be the crowning jewel of the eval-uation process, a final chance to clearup confusion, or firm up soft conclu-sions, but they cannot be the entireprocess itself as they have come to beviewed.

Anything we can do to broaden thebase upon which Senators make theirdecisions will be a valuable improve-ment on the confirmation process. Hav-ing urged a lessening in the signifi-cance of the hearings, I nonethelesswant to suggest some changes for thispart of the process as well. And here, inthis third area of reform, I have fo-cused on questioning of the nominee athis or her confirmation process. As Italk to people about the confirmationprocess, Mr. President, one of the ques-tions I am most often asked is: Why doyou not make the nominee answer thequestions? I am sure the Presiding Offi-cer has been asked that question 100times himself: Why do you not makethe nominee answer the questions?

As I have said time and again, thechoice about what questions to ask be-longs to us on the committee. Thechoice about what questions to answerbelongs to the nominee. Lacking anydevice of medieval inquisition, we haveno way, as Senators to make someoneanswer questions.

Having said that, though, I do notwant to undercut my strong displeas-ure with what has happened to this as-pect of the confirmation process sincethe Bork hearings. As most peopleknow, Judge Bork had a full and thor-ough exchange with the committee.After his defeat, many experts on theconfirmation process came to associatethis frankness with the outcome. Butthis is a false lesson of the Bork nomi-nation. I believed then, and I believenow, that Judge Bork would have beenrejected by an even larger margin hadhe been less forthcoming with the com-mittee.

Justices Kennedy and Souter, withsome exceptions, particularly in thearea of reproductive freedom, werelikewise fairly discursive in their an-swers to our questions, and they wereoverwhelmingly confirmed.

In contrast, Judge Thomas, who hadthe beginnings of a judicial philosophy

that was quite conservative, decidednot to be as forthcoming as were Jus-tices Kennedy and Souter. Moreover,because the written record to establishhis views was not as fully developed asJudge Bork's, Justice Thomas con-cluded that he did not need to use thehearings as an opportunity to explainhis philosophy, to garner support not-withstanding, as Bork did. As a result,we saw in the Thomas hearings whatone of my colleagues called a version ofa "ritualized, Kabuki theater."

Committee members asked increas-ingly complex and tricky questions inan effort to parry the nominee's in-creasingly complex and tricky dodges.Perhaps some of the committee askedquestions which we knew the nomineewould not answer-could not answer-to gain advantage. Perhaps the nomi-nee dodged some questions which weknew he could or should answer, butchose not to because he saw little costin it.

In the end, each side struggled for ad-vantage in a debate that generated farmore heat than light.

The PRESIDING OFFICER. TheChair informs the Senator that thehour and a quarter previously set asidehas expired.

Mr. BIDEN. Mr. President, I askunanimous consent that I be able toproceed for 15 more minutes.

The PRESIDING OFFICER. Is thereobjection?

Mr. ADAMS. Reserving the right toobject, and I shall not object, could theSenator make that until 10:15?

Mr. BIDEN. Yes.Mr. ADAMS. I thank the Senator.The PRESIDING OFFICER. Without

objection, the time of the Senator fromDelaware is extended until the hour of10:15.

Mr. BIDEN. Mr. President, if we areto refocus the confirmation process soit pivots on the nominee's philosophyinstead of questions of his personalconduct, the hearings must be per-formed for full exploration of that phi-losophy. Conservatives cannot have itboth ways; they cannot ask us to re-frain from rigorous questioning of Judi-cial philosophy, and instead focus onthe nominee's personal background, asthey did during the early phases of theThomas nomination, and then com-plain loudly when this examination ofpersonal background turns into a bit-ter exploration of the nominee's con-duct and character.

This turn in the process was theproduct of their disdain for our ques-tioning on jurisprudential views morethan anything else. The Senate cannotforce nominees to answer our ques-tions. But as I voted against JudgeThomas' confirmation, in part becauseof his evasiveness, I will not coun-tenance any similar evasion on thepart of any future nominees.

To make this point as clearly and assharply as possible, I want to state the

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CONGRESSIONAL RECORD-SENATE June 25, 1992following: In the future, I will be par-ticularly rigorous in ensuring thatevery question I ask will be one that Ibelieve a nominee should answer. Andif the nominee declines to do so, Iwill--unless otherwise assured about anominee's approach to the area inquestion-oppose that nominee.

Again, this is not to say that allnominees should have to answer everyquestion directed at them by the com-mittee in the past. Some refusals, suchas those by Justice Marshall during hisconfirmation hearing, were whollyproper. I am not saying that I will voteagainst any nominee who refuses to an-swer any question by any Senator. Butif we are to render this process and re-deem it, give it clear guidelines andrules that we all know, and make itfocus more on philosophy and less onpersonality, then the basic principle Ihave laid out must be included, in myview, in any of the future hearings. Asa Senator, I cannot make a nomineeanswer questions that I deem appro-priate or important. but I need notvote for one who refuses to do so ei-ther, and I will not.

Fourth, we must address the mannerin which the committee handled inves-tigative matters concerning SupremeCourt nominees. No aspect of the con-firmation process has been more widelydiscussed than our handling of Profes-sor Hill's allegations against JudgeThomas before those charges becamepublic. Many have questioned whetherwe took Professor Hill's charges seri-ously, investigated them thoroughly,and disseminated them appropriately.

Mr. President, in my view, we did allof these things within the limits thatProfessor Hill herself placed upon us.

I wrestled at length with the difficultdecisions we faced. We can debate theseanguishing choices over and overagain: Should we have overridden Pro-fessor Hill's wishes for confidentiality?Should we have pushed her to go publicwith her charges oven if she did notchoose to do so?

Well, Mr. President, people of goodconscience can differ over these dilem-mas we faced. But in my view, theanger of the committee's handling ofthis matter goes far beyond how we re-solve these difficult questions. As I seeit, Mr. President, the firestorm sur-rounding Anita Hill's charges is an un-dorstandable rage, fueled bymisporception of the facts, and ignitedby disgust with the way in which Re-publican Senators questioned ProfessorHill and Judge Thomas at this phase ofthe hearings.

But even that alone does not explainit, for this anger is rooted, Mr. Presi-dent, at bottom, in a justifiable frus-tration with a lack of representation ofwomen in our political system. ManyAmericans were, and still are, properlymad that there wore no female mem-bers of the Judiciary Committee whenwe heard Professor Hill's charges. I, for

one, join these people in the movementto make the 1992 election a watershedon this front.

And, yet, there is still a bigger issueat stake, Mr. President, for the publicoutcry over these hearings was notabout Clarence Thomas and not aboutAnita Hill, at its root.

It was about years of resentment bywomen for the treatment they have re-ceived. They have suffered from men inthe workplace, in the schools, and inthe streets and at home for too long. Itwas about a massive power strugglegoing on in this condition, a powerstruggle between women and men, be-tween the majority and minorities.These are issues that deeply divide usas a nation-issues of gender, race, andpower-issues that were front and cen-ter at those dramatic hearings last fall.

I believe our handling of ProfessorHill's charges, prior to their public dis-closure, was proper. But I also believethat there are some things we shoulddo differently in the future for the pur-poses of Improving public confidence inour handling of investigative matters.

First, I do not want the committeeever again to be placed in the awkwardposition of possessing informationabout a Supreme Court nominee whichit has pledged to keep confidentialfrom other Members of the Senate, aswe did with Professor Hill's charges.

In the future, all sources will be noti-fied that any information obtained bythe committee will be placed in theFBI file on the nominee, and shared onthat confidential basis with all Sen-ators, all 100 Senators, before the Sen-ate votes on a Supreme Court nomina-tion.

Second, to ensure that all Senatorsare aware of any charges in our posses-sion, the committee will hold closed,confidential briefing sessions concern-ing all Supreme Court nominees in thefuture.

All Senators will be invited, underrigorous restrictions to protect con-fidentiality, to inspect all documentsand reports that we compile.

Third, because, ultimately, the ques-tion with respect to investigations of aSupreme Court nominee is the credibil-ity and character of that nominee, inthe future, if, as long as I am chair-man, the committee will routinely con-duct a closed session with each nomi-nee to ask that nominee-face-to-face,on the record, under oath-about all in-vestigative charges against that per-son.

This hearing will be conducted in allcases, even where there are no majorinvestigative issues to be resolved, sothat the holding of such hearing can-not be taken to demonstrate that thecommittee has received adverse con-fidential information about the nomi-nee. The transcripts of that sessionwill be part of the confidential recordof the nomination made available, withthe FBI report, to all Senators.

No doubt, these rules, too, can becriticized. Frankly, I have labored overthis for the better part of a year, and Ithink there are no easy answers whenquestions of fairness, thoroughness,civil liberties, and the future of theCourt collide under the glaring klieglights of television cameras. Otherchanges, too, may be needed, and Ishall consider them as they are pro-posed.

But I hope that these three steps willincrease confidence in our investiga-tive procedures and the seriousnesswith which we take such matters aspart of the confirmation process.

Lot me conclude now, Mr. President,with a painful fact: The picture I havepainted today about the state of theconfirmation process and the future ofour Supreme Court is largely negative.I am afraid that my tone is as it mustbe.

For though my fundamental opti-mism about this country remainsunshaken, I know that the public'sconfidence in our institutions is not.Americans believe that their Presidentis out of touch with their lives; theirCongress is out of line with their ethi-cal standards; and their Supreme Courtis out of sync with their views.

I cannot predict whether the currentpolitical season will be the first stop inrestoring lost confidence in our institu-tions or the final act in shattering it. Ionly know that when this year Isover-whoever wins control of theWhite House and the Senate this No-vember-rebuilding trust between theAmerican people and their Governmentmust be a preeminent goal.

The confirmation process is an im-portant component of such a reformagenda, for three reasons: First, it is ahighly visible public act. More peoplewatched the Thomas confirmationhearings than any act of American gov-ernance ever in our history. As a re-suit, citizens' perceptions of the con-firmation process profoundly colortheir perceptions of their Governmentas a whole.

Second, the confirmation process isthe one place where all three of ourbranches come together. The Presidentand the Senate decide jointly whethera particular person will become a mem-ber of the Court. Thus, the confirma-tion process asks the question: Can thebranches function together as a gov-ernment? That is a vital question tothe American people, Mr. President,and how the confirmation process doesmuch to shape their sense of the an-swer to that question.

And third, the confirmation process,at its best, is a debate over the mostfundamental issues that shape our soci-ety, a debate about the nature of ourConstitution, in both the literal andsymbolic sense. What kind of countryare we, Mr. President? What rights dowe respect? What powers do we cede tothe Government? These are the ques-

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June 25, 1992 .lons that the confirmation process

should force us to ask.However this process operates, our

institutions will endure. But unlessthis process is repaired, unless all threebranches take their responsibilities toit, to each other, and to the Americanpeople and take them seriously, thecredibility of these institutions willcontinue to suffer.

To some, this may be of little con-cern. Indeed, some may be quietlypleased to see the public further losefaith in its Government.

For those who, like I, still believethat the Government can be the agentfor social change, that our institutionscan be harnessed to make our Nationmore just, safe, and prosperous, thegrowing division between the Americanpeople and their Government is a dis-heartening development.

For unless that fundamental trust isrestored, there is no hope that theAmerican people will put confidence intheir elected officials to rebuild oureconomy, to provide for the needs ofour children, to deal with the failuresof our health care and education sys-tems, and to clean up our environmentand our inner cities.

This, at bottom, Mr. President, iswhat is at stake In reforming the con-firmation process. For the crisis of con-fidence that plagues that process issymptomatic of the crisis of confidencewhich plagues our Government and in-stitutions at large.

Mr. President, together we must re-solve this crisis and restore the bond oftrust that has been severed. Nothingwe can do in the next 6 weeks, 6months, or 6 years is more importantfor the long-term course of our politi-cal system and our country.

This is our challenge, Mr. President,and we must act today.

I thank my colleagues for their in-dulgence and their time.

RESPONSE TO SENATOR BIDEN'SREMARKS ON THE CONFIRMA-TION PROCESS OF SUPREMECOURT NOMINEESMr. THURMOND. Mr. President, I

rise today to respond to the statementmade earlier by the distinguishedchairman of the Senate Judiciary Com-mittee, my good friend, Senator BIDEN.Before I begin, however, I would like tothank him for his courtesy in inform-ing me in advance of his plan to makesuch a statement. As usual, he hasworked with me in a spirit of biparti-sanship.

At the outset, I want to state that Iam unaware of any planned resignationfrom the Supreme Court of the UnitedStates. However, it is not unusual tohear such speculation whenever the Su-preme Court nears the end of eachterm. While I believe commenting uponpotential vacancies may give rise tounwarranted speculation, I feel it nec-

ONGRESSIONAL RECORD-SENATEessary to respond to the comments ofChairman BIDEN.

Senator BIDEN has urged PresidentBush, should a vacancy arise, not tonominate any candidate for the Su-preme Court until after the Novemberelection. Were a nominee named, hestated that he would oppose holdinghearings on the nomination and Iquote, "no matter how qualified," endof quote. His reason? Senator BIDENhas argued that the nominee would be-come a victim of a power struggle overcontrol of the Supreme Court. Also,Senator BIDEN fears that because thereare issues of paramount importancefacing the Court, a nominee at thistime would be unwise. Now, Mr. Presi-dent, unfortunately, we do not havethe luxury of coordinating vacancieson the Supreme Court with times whenthere are mundane and nonjusticiablematters before the Nation. The Senateshould not shrink from its responsibil-ity to act on a Supreme Court nomineesimply because once confirmed as anAssociate Justice there will be toughdecisions to make.

Senator BIDEN has stated previouslythat he will only consider carrying outthe Senate's constitutionally requiredrole if the President chooses to com-promise with the Senate before naminga nominee.

I believe the Senate should ask itselfJust what this purported consultationand compromise process reallyamounts to. Is it supposedly necessaryto ensure that the individual nomi-nated is qualified and will be confirmedby the Senate? President Bush has al-ready demonstrated with each of hisprevious nominations to the HighCourt, all of whom were qualified andconfirmed, that such a consultation isunnecessary. In fact, in the last 10years, the Senate has confirmed 97 per-cent of the over 600,000 nominations ithas received. Although the chairmanhas focused his remarks on SupremeCourt nominees, I wanted to note thatfigure for the RECORD. The net result ofSenator BIDEN's recommendationwould require President Bush, or anyPresident, to seek and obtain the ap-proval of a small but vocal minority ofSenators and special interest groupswho have failed to defeat his previousnominees. If followed, the chairman'ssuggestion would turn the currentnomination process on its head.

Article II of the Constitution sets outthe powers of the President as head ofthe executive branch. Section 2 of thisarticle grants the President power tonominate persons to fill judicial vacan-cies and further appoint them follow-ing the advice and consent of the Sen-ate. As I read the Constitution, this isa two-step process, The President firstnominates an individual to fill a va-cancy and then the Senate approves be-fore the official appointment.

I am aware that there have been ad-ministrations in the past that sought

16321consultation with Members of Congressand party leaders prior to the actualnomination. That is understandablebut clearly not mandated by article II,section II of the Constitution. It Is myfirm belief that the role of the Senatein the confirmation process is to pro-vide its advice and consent followingthe President's nomination. However,this does not preclude a President, whois so inclined, from discussing a poten-tial nominee with Members of the Sen-ate.

It is the President, not the majorityleader, the minority leader, chairmanor ranking member of the JudiciaryCommittee who has the responsibilityfor putting forth a Supreme Courtnominee. Following the nomination, itis then the responsibility of the Senateto ensure that the individual possessesthe necessary qualifications to serve onthe highest Court in the land.

It is this process-a process whichshould not be changed for election yearexpediency-which has signified themajesty of our system of governmentand underscores the brilliance of ourFounding Fathers.

Mr. President, I also want to pointout that the fanfare surrounding thenomination hearings for Associate Jus-tice Thomas was a result of confiden-tial information coming out in thepress. It is a far stretch to suggest thatit could have been avoided if onlyPresident Bush had consulted with theSenate prior to Justice Thomas' nomi-nation.

In closing, Senator BDEN has statedthat it is a practical impossibility toavoid politicizing the conformationprocess of any Supreme Court nominee.I do not share this fatalistic view. I ampleased to hear my colleague expressconcern about the politicization andvictimization of Supreme Court nomi-nees. Yet, his proposed changes to thehearing process--which I have not hadan opportunity to study-do recognizethat it is within the power of the Sen-ate to minimize the politicization ofthe nomination process. Each Senatormust make the decision whether toabide by his or her duties under theConstitution, with fidelity thereto, orto give in to the extreme politicalforces which have brought such disdainupon previous Senate confirmations.

Previously, the chairman also statedthat the liberals and conservatives areso self-righteous that each side Is pre-pared to use any means necessary towin confirmation battles. Mr. Presi-dent, I gather from this statement thatthe chairman is prepared to take onthe role as an arbiter between the twosides. I am not so sure as to how theconservatives will fare under such anarrangement, but I welcome his will-ingness to ensure fairness at any pos-sible nomination hearing for the Su-preme Court.

The PRESIDING OFFICER (Mr.BRYAN). Under the previous order the

CONGRESSIONAL RECORD-SENATE June 25, 1992Senator from Washington [Mr. ADAMS]is recognized.

Mr. SIMON. Mr. President, a par-liamentary inquiry.

The PRESIDING OFFICER. The Sen-htor will state it.

Mr. SIMON. We have allotted times;is that correct? What is the presentorder here?

The PRESIDING OFFICER. TheChair informs the Senator from Illinoisthat, under the previous order, theSenator from Washington [Mr. ADAMS]is recognized for a period of up to 10minutes; the Senator from Vermont[Mr. LEAHiY] recognized for a period upto 10 minutes; the Senator from Arkan-sas [Mr. PRYoiR] recognized for a periodup to 20 minutes; the Senator fromNew Hampshire [Mr. RUDMAN] recog-nized for up to 35 minutes; the Senatorfrom Wyoming [Mr. SIMPSON] or hisdesignee recognized to speak for up to10 minutes; and at that point morningbusiness is closed and the Senate willresume consideration of S. 2733.

XTNsION OF MOANING BUSINESSMr. SIMON. Mr. President, I ask

unanimous consent that morning busi-ness be extended for another 5 minutesand I be given 5 minutes at the end ofthis period.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

The RECORD will reflect that the Sen-ator from Illinois will be accorded 5minutes following the time allocatedfor the Senator from Wyoming [Mr.SIMPSON] or his designee.

The Senator from Washington [Mr.ADAMS] is recognized.

Mr. ADAMS. Mr. President, I com-pliment the chairman of the JudiciaryCommittee for an excellent statement,which I think is very important at thistime.

(The remarks of Mr. ADAMS pertain-ing to the introduction of S. 2895 arelocated in today's REcORD under"Statements on Introduced Bills andJoint Resolutions.")

The. PRESIDING OFFICER. Underthe previous order, the Senator from Il-linois [Mr. SIMON] is recognized for aperiod of 5 minutes.

HELP SOMALIAMr. SIMON. Mr. President, we pick

up tie morning Washington Post andsee the tragic picture in Bosnia of twofathers whose 10- or ll-year-old sonshave been killed. And you see the fa-thers grieving, and it tears at ourhearts, as it should. I was pleased theday before yesterday when Secretary ofState Jim Baker came up and said weare going to have to do more on theBosnia situation. As many as 30,000 or40,000 people have been killed in thattragic situation

But, Mr. President, the world's great-est humanitarian tragedy right now isunfolding without television lights,without the press attention, and that is

in Somalia. The International RedCross has specifically called it theworld's greatest humanitarian tragedytoday. The United Nations has assignedAmbassador Mohammed Sahnoun, theformer Algerian ambassador to theUnited States, to Somalia. And lastweek he reported that as many as 5,000children under the age of 5 are dyingeach day in Somalia. He says the situa-tion in Somalia is worse than 1984 to1986 in Ethiopia, when 1 million peopledied.

I talked to Ambassador Sahnoun byphone last night. And he says the situ-ation in Somalia has stabilized enoughso that ships and planes can now get in.One ship has arrived. The InternationalRed CroEtj, the International MedicalCorps, and CARE are all providing as-sistance. But it is a small amount com-pared to the desperate need that isthere. The ports of Mogadishu andKismayo are now open so that ship-ments can get in, planes can get in, andwe have to see that it gets there.

They need roughly 30,000 metric tonsof grain on an emergency basis. Theyneed about 3,000 metric tons of chil-(iron's food, very desperately. Frankly,we also need helicopters to get it outto areas where you do not have high-ways and areas that are out in the mid-dle of the desert.

Medical supplies are desperatelyneeded. Somalia had 70 hospitals. Theyare now down to 15 partially function-ing facilities there. Where we talkabout hospitals we are not talkingabout hospitals as you and I knowthem but very primitive situations.The need is desperate.

I am communicating today to RonRoskens, the head of AID, and Assist-ant Secretary of State Herman Cohen.I hope the United States will act witha sense of urgency, get food to des-perate people-and get the food tothem, as well as medical supplies, very,very quickly.

Again, this is not to in any way sug-gest that we should not be respondingto Bosnia and other great tragedies.But the greatest tragedy today, rightnow, is people who are (lying for lack offood. Again I point out, AmbassadorSahnoun says it is a greater tragedythan in Ethiopia from 1984 to 1986,when 1 million people (lied. He said lastweek that over 5,000 children a day are(lying, children under the age of 5,dying for lack of food.

I hope we do the right thing. I hopewe do the generous thing and respondvery, very quickly.

Mr. President, if no one else seeksthe floor I suggest the absence of aquorum.

The PRESIDING OFFICER. Theclerk will call the roll.

The assistant legislative clerk pro-ceeded to call the roll.

Mr. PRYOR. Mr. President, I askunanimous consent that the order forthe quorum call be rescinded.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

Under the previous order, the Sen-ator from Arkansas has 20 minutes.

THE FEDERAL GOVERNMENT: GIV-ING DRUG COMPANIES A LI-CENSE TO GOUGEMr. PAYOR. Mr. President, each year

the Federal Government--through theNational Institutes of Health-spendsbillions of dollars on the research anddevelopment of new drugs. Once ourFederal Government finds and developsthese drugs, it appears that we simplyhand it over to the drug manufac-tiurer-essentially giving the patentthat provides the industry with a It-cenie, to price gouge. The bottom lineis that we fail to hold drug companiesaccountable for the prices they chargeus for drugs that were largely devel-oped with Federal tax dollars.

Last week, on ABC news program"PrimeTime Live," the American pub-lic heard the story about the cancerdrug Levamisol. They heard that thisdrug is sold to farmers at 6 cents a tab-let to use It as a sheep dewormer.Johnson & Johnson charges Americanswith cancer 100 times more, $6 per tab-let.

While this price gouging is toughenough to swallow, what adds insult toinjury is the fact that most of the re-search on the drug was done at theFederal taxpayers' expense, by the Fed-eral Government, in Federal labora-tories through the National Cancer In-stitute. Yet, the Federal Government,Mr. President, apparently, has givenaway the patent on this drug with noaccountability to the Nation's tax-payers and is allowing the company tocharge some $1,500 a year for this drug.

Mr. President, the Lovamisol casemay only be the tip of the iceberg.There are too many more examples ofdrugs whose development has been or isbeing paid for by the Federal taxpayer.Lot me, if I might, cite a few more.

Last Monday, the Food and Drug Ad-ministration announced that it had ap-proved a third drug to fight AIDS, Thisdrug, Mr. President, is called DDC orHivid. The manufacturer of this drug,Hoffmann-La Roche, is charging some$1,800 a year for the drug. Here again, itappears that the Federal Government,in particular the National Cancer Insti-tute, had more than a significant rolein bringing this drug to the market.Yet, we give it away to a drug manu-facturer who price gouges the Amer-ican public.

Mr, President, DDC is known as anorphan drug. Orphan drugs are medica-tions that are developed to treat a dis-ease that affects less than 200,000 per-sons in the United States. Those com-panies who produce these drugs are therecipients of very lucrative tax breaksand grants. They receive these breakson top of the already generous tax

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