>> i had originally planned to speak at some length on this as others have. i've been sitting here listening with considerable interest to the comments of the senators and others and it's been a great history lesson for those of us charged with the responsibility of advising and consenting to the nominations. as we all know in the 200 year anniversary of the constitution for the anniversary of the constitution we looked back at the document and honor the framers and think about the debate that they had and then looking at the particular portion i might say that this particular has been around for why we've been in the senate for two and a half years but i've

been dealing with supreme court nominees for 18 years going back to 1969. during the period i was an assistant to a senator on the judiciary committee during the haynesworth. and we struggled then that the question of what advice and consent and as an idealistic lawyer i wrote an article for the kentucky law journal entitled haynesworth david cardwell center of excellence and attempted to codify at that time what seems to be an appropriate role for the senate bearing in mind the advice and consent on the one hand as the constitution puts it. the president shall nominate with the advice of the senate

and clearly advice and consent on the one hand in either dominate or a point on the oth other. they've wrestled with it for 200 years and on some occasions we just engaged in the raw political exercises after which we have either approved or rejected the nominees and various senators have described the occasion of great length. however we have been a little more responsible it could be argued. a little more inclined to differentiate or a point on the one hand or advise and consent on the other. and making some efforts to the strain ourselves to limit it

seems to me this is what i've id in 1970 and the article it was pretty clear that the majority in the senate settled on the following kind of crete. as relevant to our inquiry and advice and consent to nominees to the supreme court. in the criteria that are obviously appropriate that no one could argue with. first we want to make sure the absolutely confident nominees after all the supreme court of the united states we are talking about here, not the court of hoboken new jersey. clearly we would want somebody that was obtained great achievement and distinguished achievement in his or her life. judicial temperament, import part of weighing out the supreme court.

obviously something the senator ought to look at. conduct on the bench. we want somebody that is handling stuff on the bench properly. and finally i think the personal integrity is a level of the judicial system at the very top that is obviously something we should be looking for. and applying those standards i concluded back in those days the judge had been erroneously denied confirmation that the judge had certainly deserved to be defeated and people have a tendency to link together. apply in that relatively objective standards to both nominees is clear that one could region should reach the title to be confirmed but unfortunately

both were defeated. that was i wasn't the last. i came back as a volunteer and helped out on the confirmation of william rehnquist at the time being appointethattime being apy president nixon to the supreme court. then many years later as a member participating in a nomination to the justice rehnquist to be chief justice and judges to scalia. we have wrestled with this for some 18 years and have given a good deal of thought to what the words mean and how they ought to be applied in what the role of the senate should be in the

advice and consent but until this episode of the majority ofe senators at least in this century have felt advice and consent did imply some restraint. some modification of the inquiry and most felt that since the kind of criteria that i outlined earlier looking into the confidence of the nominees. one of the reasons we were reluctant to throw all of that to the wind and say politics is relevant for us is outlined in a very excellent article some excerpts i want to read in the cardoza law review into the title was the transformation in the senate response to the supreme court nominations from

reconstruction to the taft administration and beyond pointing out the relevant points in friedman says during reconstruction senator street supreme court as a political institution that they expect a particular ideological line the public is likely to see the court in the same light as well as the court itself. if the unpopular supreme court decisions tend to lead to confirmation controversies that put the court in an unfavorable light and it is natural to expect the court will render fewer such decisions. even to the extent it may be

considered we do not allow it to make policy because it is politically accountable. on the contrary it is the court's independence and the appearance of impartiality. precisely because it is and is perceived to be different from the other branches. if the distinctions blur then so will the role of the court. further in the article, friedman says it is a political body. a large part of the job is or should be transformation of his beliefs or those of his constituents in the public policy. it is not easy for a senator to accept willingly the nomination of the justice who will act

contrary to those beliefs in the decisions deeply affecting the life of the nation but for several reasons a thoughtful senator should realize that any benefits of barring the ideological component from the court are not likely to outweigh the damage done to the courts institutional standards. friedman goes on the ideological opposition to a nominee from one end of the political spectrum is likely to generate similar opposition to the later nominations from the opposite end. in the long run another result oby the resultsof such would pro politicize the election process and not to shift the court to the left or to the right. the second reason why opposing the supreme court nominee friedman says on ideological

grounds is less beneficial than it might appear at the time is the difficulty in predicting the nominees judicial and future assessments of that ideology and this is quite interesting. one survey estimates the one justice in four turns out to be quite different from what is the point. it's the difficulty of prediction. it's not surprising then that the senators have expressed regret and oppose the nomination from the justice whose record on the then should they later approve and a senator should havthe senator shouldhave some g the supreme court of the ideological grounds. more than in the case of most public issues there is a strong possibility that he will later roll his action.

friedman goes on. there's a third reason the senator should resist the temptation to oppose the ideological grounds. the damage the justice can do is limited. we have heard a lot of predictions about how the judge was going to remake america. i tend to disagree the damage the justice can do is limited. often of course he may provide a decision that the reviewing senator would find helpful but no more than what the vote of a second choice appointee of the same president something we will soon receive. the senate isn't likely to achieve much good by posting an extremist nominee on the ground

they are likely to affect the nation adversely. friedman goes on. if the senators vote against moderate opposing views, the selection process would become almost unimaginably politicized and what in large part be shifted from the president and the senate. i ask that entire article appeared in the record. >> without objection, so ordered a. >> where are we for almost 20 years? it seems to me where we are is bad it's not likely that a body

as political as this one is going to be able to render the kind of impartial judgments based upon the standards the senator from kentucky laid out from standards like confidence, achievement, temperament, judicial conduct and personal integrity and limit those items. frankly the senator thinks that's the way that it ought to be. but if i'm nothing else, i'm practical. and having studied this issue and looked at these nominations, for 18 years i have reluctantly concluded that those standards

are uttered by the rather idealistic 28-year-old lawyer are not likely to be honored in this body. it seems to me the only time that we are inclined to restrain ourselves and to limit to those kind of standards are when we get a noncontroversial nominee. the president, whoever he is, set up a nomination that isn't very controversial and we can preach to each other about how the advice and consent means those high standards. but if the president sends up a controversial nomination, and that is what this one has certainly turned off to become it seems to me that it's not likely we are going to restring ourselves.

the opportunity to go is great so why do we wish it were the way that it ought to be in 1970, it isn't a into seems to me we might as well accept and adopt what the standard is. i do this with no bitterness i might add even though in a sense it makes my article that but is proud of 18 years ago dated and irrelevant. i nevertheless am prepared to say i accept the standard. it's asking too much of us to ignore the political implications of the nomination to the supreme court. we are going to do that when we

want to and when we want to whenever he sends up somebody they don't like. and there will be people in the united states senate who can limit that occasion to things like achievement, judicial conduct and no matter what we call it what we are going to be doing is trying to create a reason to oppose the nominee on the philosophical grounds so it seems where we are is the advice and consent of 1987 as a result of the defeat of the judge means this, for the majority of the united needs senate, we are going to make the decision on any basis that we please.

and if we object as a matter of philosophical persuasion for the president is trying to move to the right or the left we will stand up and say that and vote accordingly. in some respects with a sense of relief because in my party for example if we are to win the presidency next year, i expect that the nominee to the supreme court might be of the persuasion that i wouldn't pay for. i would make a limited inquiry

to that nomination based upon the confidence achievement temperament conduct and integrity. but it seems that if nobody else is going to apply that kind of standard that he shouldn't either. we should apply the new rule and the new rule is we will consider all aspects of every nominee and as far as my vote is concerned, i shall consider as relevant determining how i cast my vote.

the senator from kentucky will consider a new standard in this confirmation proceeding and apply it prospectively. the senator from kentucky will do that as i indicated earlier because after all it isn't easy for us politicians to restring ourselves and pull back if you will to confine the inquiry to something as standardized and simple as trying to ensure that we have truly outstanding members of the legal profession of the united states supreme court. in conclusion of where we are the words nominate and appoint a

gift to the president this election, the power of selection that we interpret the advice and consent in the body. if we don't like the philosophical meaning of the nominee tha then the senate woud reject nominees on a philosophical basis. it is a formula for gridlock potentially a. it is not so well published somebody maybe ten or 15 years

younger and we may walk around here one more time and it will be interesting to see what happens to the next conservative nominee in the united states senate. will it be in the same way? it is a formula of the gridlock that it is freedom for each of us to do our own thing. we may not be able to pick the nominee. it was in my judgment whe one oe

outstanding nominations of the century he would have ranked up there with cardoza and others. i suspect he would have been disappointed on the occasions and i doubt that it would turn out the way the president predicted and had he served i expect we might have heard from a number of senators that say he really did surprise me. he ended up being a lot better than i thought he was going to be and i made a mistake much like we heard from numerous people about the judge. and if there is a parallel is the haynesworth affair. what did he do after he was defeated?

did he go home and sold? no. he spent the rest of his professional career on the fourth circuit proving that his detractors had made a mistake so i would say you are an outstanding public servant. you have distinguished yourself on the court of appeals and district. i hope you will stay there it's the second most important court in the land and the best way to deal with this crisis is to prove for the rest of your professional life how wrong the decision of the senate was. so you fought the good fight,

you did your best. it is a contest and you happen to be the one who set the new senate standard that would be applied in my judgment by the senate prospectively stay on the court. prove your detractors wrong. continue your outstanding career of public service. madam president, i yield the floor. >> we are back with rollcall talking about the nomination and confirmation process of supreme court justices, republicans repeatedly cite the 1992 speech

by then senator joe biden where he urged president george hw bush from refraining from making any nomination to the supreme court that summer should a vacancy occur. the remarks included a plea for more moderate nominees and could receive bipartisan support. david hawking's, explain the context for that speech and why the future vice president spoke at such length on that topic? >> that speech was in june 1992 by which point it was clear bill clinton would be the democratic nominee for president. the first president george bush running for reelection, ross perot was in the makes and it was a highly unpredictable three way race for the presidency. at that time there were two justices on the court, byron white within his 70s and harry blackman in his 80s and their widespread rumors that one or both were going to retire the day after joe biden gave the speech in the final week when the supreme court almost always goes home, last week in june.

the day before the last sentence came out. joe biden, chairman of the judiciary committee. >> democrats in control of the senate. >> george w. bush, democrats in charge of the senate, this was the inverse of what we have with a democratic president and republican senate, joe biden, chairman of the judiciary committee goes to the senate floor and speaks for more than an hour saying the words republicans are trying to hang around the obama administration's neck which are it is too late in the political season to be fair to the president, to the senate itself or the nominee, too late in the political season to give a nominee a fair hearing and besides, he says, joe biden says at the time, it would be wrong for george hw bush to continue

in the trend of the reagan/bush years of nominating what joe biden described as polarizing conservative judges. when you watch it, you sort of have to remember the context, and that the roles people play in this process depend on who is in control. >> host: this is the speech by then senator joe biden from 1992. we are going to show you the vice president's most recent comment on the supreme court confirmation. >> i would like to apologize in advance for trespassing on the president's time in the senate. i thought to speak before the senate for as long a time as i saw today in morning business. the subject to which i speak is

something i have given a great deal of thought, asked by the senate to spend considerable time thinking about is extremely controversial. in light of the fact that within a day, we are within a day of the time historically supreme court justices make judgments whether they will stay on for another year. it seems propitious although i know of no justice who means to resign. i don't mean to imply that. my speech this morning is about reforming the confirmation process and the need for a new dawn with regard to how we conduct ourselves relative to the confirmation process involving the supreme court

nominee. seven years ago, harvard law professor laurence tribe reflected on, the second oldest supreme court in history, and he wrote, quote, a great supreme court is a sort of haley's, it in our constitutional universe, a rare operation arriving once each leitch time -- lifetime burying itself in our legal firmament for a brief period before returning to the deep space of constitutional history. he added a quiet period in which there were just two supreme court nominations in 15 years was, quote, the calm before the constitutional storm that surely lies ahead, predicting, quote, some time in this decade we will be tossed into the turbulent process that gripped this nation

in the past. today, after naming seven men to build five vacancies on the supreme court in just five years we find ourselves in the midst of the storm professor tribe forecast. in these past five years the united states senate has endured three of the most contentious confirmation fights in the history of the united states. the 1986 nomination of william rehnquist, who was confirmed by the most votes cast against him of any judge to the supreme court in our history up to that point. and robert bork at the end of an epic conflict between competing constitutional visions and the subsequent withdrawal of justice ginsburg just days after president reagan selected him to

succeed bork as his nominee. the fierce fight which none of us will ever forget in 1991 over clarence thomas's confirmation to the court which broke chief justice william rehnquist's record for receiving the most negative votes in senate history. the immediate process -- product of these conflicts, to change the court over the past few years, has already been dramatic. as duke professor walter dillinger pointed out, we might see as many as five justices retire within the next four years. in all likelihood we stand at only the halfway point in the remaking of the supreme court. with as many confirmation controversies, as we saw over

the past two terms combined. by the time we arrive at the next election year, 1996, there is substantial chance that no member of the court serving on the court in june 1986 will remain on the bench. such complete replacement of the court in just ten years has only one precedent since the court was permanently expanded to tween 9 members over numb 100 years ago. today, as we stand at the mid-deca of this dramatic change, i would like to discuss what has transpired over the past few years with respect to the confirmation process. i want to discuss what should be done if the supreme court vacancy occurred this summer and finally i want to offer four general proposals for how i

believe the nomination and confirmation process should be changed for future nominations. let me start first with consideration of the confirmation process of the past decade. as i mentioned earlier presidents reagan and bush aimed eight nominees for six positions on the court during the presidential terms. this is not the first time in our history that a strong ideological president and his loyal successor have combined to shape the court. presidents washington and adams made 18 nominations of which 14 were confirmed and served among the court's six justices. presidents lincoln and grant nominated 13 candidates to the court of whom tween 9 were confirmed and served. presidents roosevelt and truman named 13 justices all confirmed

in their combined terms in the white house. what distinguishes the reagan/bush justices from these historical parallels is half of them have been nominated in a period of a divided government. in each of these times, each of these previous times, a sweeping, nationwide consensus existed as reflected by the election of both political branches of like-minded officials, which justified the sweeping changes that took place at the supreme court. over the past two decades, mister president, no such consensus has existed, unlike the eras to which i pointed. with lincoln grand, roosevelt truman, washington adams. since 1968 republicans have

controlled the white house for 20 of 24 years. democrats have controlled the senate for 18 years of this period. the public has not given either party a mandate to remake the court into a body reflective of a strong vision of our respective philosophies. in both our parties should finally honestly admit to that fact. both our parties should honestly have conceded this fact, but neither has thus far. of course this is not the first period when a divided government has been required to fill the third branch of government. 1/5 of all supreme court justices have been confirmed by senates of a party different from the president's. one third of all justices confirmed since 1930 have been approved under these

circumstances. it was a senate controlled by progressive republicans and democrats that confirm three of president hoover's four nominees for the court. a democratic senate reviewed and approved four eisenhower nominees. in the experience of divided government, in some period where a president and the senate shaped, shared the same party, presidents commonly have taken the constitution at its word and asked for the senate's advice, advice, as well as its consent. these presidents have consulted with the senate about their choices for the court. and/or chose nominees with balance or diverse ideology. thus the conservative republican

hoover named conservative chief justice charles evan hughes but also named a moderate, owen roberts, and a liberal, benjamin cardoza, the latter, benjamin cardoza, after heated executive senate consultation, similarly, president eisenhower's choices for the court included conservatives john harlan and charles whitaker. moderate stuart and liberals earl warren and william braddock. even president nixon, who showed no reluctance to take full advantage of presidential prerogatives, balanced his choices of conservative warren burger and william rehnquist with those of moderate republican harry blackmun and conservative democrat lewis foul. this has not been the model president reagan and bush have

followed. indeed, even lacking the broad support for their vision of the court which presidents washington and adams, lincoln and grant and roosevelt and truman had, president reagan and bush have tried to recast the court in their ideological image. as these presidents did. put another way, this is not the first time attend him of presidents have sought to remake the supreme court, nor is it the first time that a divided government has had to fill a number of seats in that body. but it is the first time that both have been attempted simultaneously. that more than anything else has been at the root of the current controversy surrounding this selection of supreme court justices. a stress created by the

decisions of president reagan and bush to move the court ideologically into a radical new direction which this country does not support. it was to cope with this stress that the modern confirmation process was created and on this point there should be no doubt and no uncertainty. the use of presidents reagan and bush made of the supreme court nominating process in a period of a divided government is without parallel in our nation's history. this power grab unleashed the powerful and diverse forces that ravaged the confirmation process. the american people are dissatisfied with where they find the process today, they must understand where the discord that has come to characterize it began. presidents reagan and bush and

their decision to cede power in the nominating process of the radical right within their own administration, it was in the phase of this unprecedented challenge of the supreme court selection process that we in the senate developed an unprecedented confirmation process. the centerpiece of the new process with a frank recognition of the legitimacy of senate consideration of the nominee's judicial philosophy as part of the confirmation review and i ask unanimous consent the previous speech i made on the senate's right to look at obligation to look at the ideology of the nominees being inserted in the record. at the time i first set forth this notion during the board confirmation debate it was a widely controversial notion, that is if we as well as the president had a right to look at ideology.

scholarly works reaffirmed by the recent articles of professor david strauss have always found a solid basis for this view and the intentions of our framers and the history of our nation. in my view the debate over the senate's review of ideology has been a fruitful. we have quashed the myth the senate must defer to a president's choice of a supreme court justice. the men and women at the apex of the independent third branch of government, as the senate properly does for nominees in the executive branch, the role of the senate as a vital partner in reviewing supreme court nominations has been enhanced. the debate over this role cause even those who were initially skeptical like professor henry morgan who outlined the grounds

for his conversion in the 1988 article in the harvard law review to join in the broad consensus over the propriety of more active senate participation in the process. more fundamentally, mister president, the serious and profound debate that the nomination sparks was among the most important national discussions about our constitution, its meaning and the direction of our supreme court in this century. before the board confirmation fight the legacy of the warren court was seen as tenuous by scholars and ill supported by the public. the legal right that judicial activism was a rallying cry that would move americans. against the court's protection of personal freedoms it is one person one vote doctrine and other progressive decisions that the legal right had no popular

support and less legal foundation. the legal left prior to the board fight, fared that the right might be correct, a popular opinion that the warren court, and the public reaction rejects the right legal philosophy and judicial notions proved just the opposite. some aspects of the warren court decisions remain under assault particularly in the area of criminal law, others are irrevocably secured in the hearts and minds of most americans like the court's recognition of the right to privacy. a right that if you recall, mister president, prior to the

bork fight, the right, the ideological right of this country thought was not supported by americans. this could not have been said before the board confirmation fight and get it can be safely proclaimed today, that americans, americans strongly support the right to privacy and find that there is such a right protected in the constitution. nor do i limit the success of this process to the board rejection only. i am equally satisfied although for different reasons as to how the process functioned in approving stes kennedy and souter. i said when i supported their confirmations, neither man is one whom i would have chosen had i been president but each reflect a balanced selection, a non-ideological conservative that stands between the white house philosophy and the senate.

i might note parenthetically the decision yesterday on school prayer or prayer before convocations in public schools, and justices souter and kennedy took a position diametrically opposed to that that has been proffered by this administration and the previous one for the past 11 years. i have disagreed with some of the decisions, i know president bush must say the same thing, that he disagrees with some of the decisions of the two men, kennedy and souter. i offer them an example, mister president. both men have issued some opinions i sharply reject but in a period of divided government, both with compromised candidates

or appropriate for the court whose confirmations i supported. in my view the contemporary confirmation process functioned well in approving justices kennedy and souter. yet sadly even in so succeeding one could see within the process the siege of the explosion that was to come with the thomas nomination and destructive forces that were going to tear it apart. as i said earlier, the root of the current collapse of the confirmation process is the administration's campaign to make the supreme court an agent of an ultra right conservative social agenda which lacks support in congress and in the country. i point out again parenthetically, mister president, the entire social agenda of the reagan administration has yet to be able to gain majority support in the united states senate or the united states house of

representatives or among the american people over the past 11 years. failing the ability to do that, both presidents have concluded and did conclude that the avenue to that change was to remake the court. in describing as i am about to, the result of reactions by different forces and factions have brought about the difficulty we now face, i don't want anyone to lose sight of the fact that it is the administration's nomination agenda that is the root cause of this dilemma. that is, if you will, the original sin which has created all the problems that plague the process today. the administration's desire to placate the right wing of its party which is driven by a single issue, overturning roe v wade. to the members of this

republican faction, no mere conservative such as justice o'connor or justice powell, is safe to use the word they often use. the administration is urged to reach for scalia, bork, thomas, but if this is the original sin behind today's woes it is not the only cause of the confirmation deadlock. and there are three consequences of the reagan/bush nomination strategy that have contributed to the problem. first, democrats and moderate republicans played into the hands of the republican right by accepting row as the divining rod in reverse, making the nominees refusal to stated views on this question the overriding concern in the confirmation process. and permitting a single issue to dominate the debate, the center

and the left lost sight of the fact, nominees chosen by republican ultraconservatives they tend to embrace other constitutional jurisprudential views, unrelated to abortion but equally at the far end of the spectrum. put another way, the senator to the left which won such a broad public support for the positions against judge bork's nomination have allowed themselves too to be defined as single issue participants. this has given rise to even more frustration about the process from both participants and observers and with one cause for the schism that emerged in the thomas confirmation debate, moreover the focus on row prevents the committee in the hearing because questions about the nominees views on many matters from the cutting-edge issue of the right to privacy to

the age old legal doctrine are immediately assumed by all those who observed the process to be covert questions about abortion when they have nothing to do with abortion. among the most frustrating aspect of the souter and thomas hearing was the one i tried to question the nominees and whether they thought individuals had a right to privacy, everyone, the press, the public, the nominees, my colleagues, thought that i was trying to ask about abortion in disguise. no matter how many times i said truthfully and frankly, quote, know, forget about abortion, how you will face the many unknown questions that will confront the court in the 21 stupid century i must know whether you think individuals have a right to

privacy. end of quote. no matter how many times i insisted, everyone believed i was asking about abortion. that is how powerfully the issue dominates our process. second, in the period between bork and thomas's nominations, they developed what could be called an unintended conspiracy of extremism between the right and the left to undermine the confirmation process and question the legitimacy of its outcome. simply put the right could not accept that any process which resulted in rejection of judge bork was fair and legitimate. notwithstanding contemporaneous declaration of many republican senators that the hearing and the process for handling the bork nomination were fair, a subsequent mythology is developed that claims otherwise.

we are told the hearings were tilted against work, but more witnesses testified for him then appeared in opposition. i have heard the scheduling of the witnesses where we simply alternated pro/con panel after panel and a list of excuses goes on and on. it was the camera angle, the dark of -- the beard, the light, the timing, all unfair, all engaged in by those who oppose bork to bring him down. some, the conservative wing of the republican party never accepted the cold hard fact that the senate rejected judge bork because his views came to be well understood and considered unacceptable. because this rejection, because

of this rejection of their core philosophy it is inconceivable to the legal right, they have been on a hunt for villains ever since. they have attacked the press, as in a recent speech by conservative federal judge, two new york times reporters among the finest to cover supreme court hearings. but most of all, these movement conservatives have attacked the confirmation process itself in the senate for exercising its constitutional duties to conduct it. it doesn't stop there, mister president. at the same time the left too has closed its frustration with its inability to persuade the american public of the wisdom of its agenda in anger about the confirmation process as well. the left has refused to accept

the fact that when one political branches conserved by a conservative republican, the other has philosophic fulcrum resting on key southern democrats who held the balance in close vote for the senate for a long time, that it -- in those circumstances it is inevitable the court is going to grow more conservative. .. gulf such as the justices that were approved by the combined total love 188-9 in the senate. mr. president, it is frustrating because the conservative president and the senate where the outcome is held by the conservative southern democrat is not put in the nominated justice brennan who i think was a great justice and should find

people to replace him. just as the right refuses to accept the reality of the defeat of. the vast majority of americans com,an overwhelming majority of senators were not equipped to deal with whether or not he had a beard, camera angle, an ad by an outside group to. a scapegoat for the ideological advocates of the competing social visions. visions. advocates have not been able to persuade the generally moderate american public of the wisdom of

either of their views when framed in the extreme. these applicants have joined in an ad hoc alliance the extreme right and left to undermine public confidence in the process and in a process aimed at moderation hoping to form a social and cultural war in which one or the other will prevail. the third problem, mr. president, the confirmation process has been infected by the general nastiness that predates our political process today. or i believe played little or no role in the outcome. the inaccurate ads that were run against the confirmation only taunted increasingly cutting

responses. the nomination included a level of senators that may be typical of the modern campaigns, that is destructive to any process depending upon the consensus as is the confirmation process. after the nomination was announced, one opponent o oppone judged on the south side of the senate threatened to a menacing pledge that served no purpose and then as the hearings were about to begin wit, the same conservative groups have produced the infamous ads brought in television commercials attacking members of the judiciary committee including myself with the intent to intimidate and be so stated intimidate our review of the nomination. i find it ironic in the context of the presidential elections

and the insights to respect the confirmation process. the same criticized the committee for not going hard enough after the allegations judge thomas had improper travel expenses spitefully transferred a whistleblower. and the part-time lobbyist many of the critics of the committee are among the first on the facts the presidential campaign of 1992 have been dominated by questions of personal homebuilding instead of the real issues. we can't have it both ways mr. president. the campaign was centered on disputes over the public policy in the marijuana use but i must

say the same is true about the supreme court nominees and enriched when we explore their views it is the base in my view when we plow through their private lives for dirt. as with presidential campaigns mr. president, the press perhaps because it is easier, perhaps because it has held papers has too often focused on its coverage of the supreme court nominees focused its coverage on the supreme court nominees on such gossip and personal matters rather than on the substantial but difficult task of trying to discern the philosophy and ideology because it is their philosophy and ideology that will affect how i enabled to live my life, how my children will be able to live their life. not whether or not when they were 17-years-old they smoked marijuana or anything else.

let me make it clear mr. president, i am not speaking of the allegation against judge thomas which we are certainly serious and significant enough to merit the investigations that the committee conducted both before and after the public disclosure. i am speaking of the numerous lesser allegations against the nominees with the most extreme committee critics that say we have done too little to pursue. each time the charges enrage republican allies of the east who consider them the violation of the right to privacy and each time when the committee in my direction refused to explore the rumors of the more extreme critics of the process grew more and more frustrated with the results. another attention came to be heard during the thomas

nomination which exploded when the professor's charges were made public. to sum it up, the confirmation process launched in 1987 which was an attempt to provide a means for dealing with the campaigns that transformed the supreme court ideologically at the time when those ideological views lack of public support. the process that began in 1986 and 1987 to do what i just said has been tearing asunder. the process lacks the broad-based support that can make it work. and the credibility has been eroded by the criticism that is received by both liberal and conservative ideologues. a legitimate process that was built in good faith to identify and confirm consensus nominees has been destroyed by many of

the same corrosive influences that has so devastated that presidential policies and national bio blog in public affairs. consequently, it is my view that particularly if the reality of the divided government in the time of great change and the courts continues in the next administration, future confirmations must be conducted differently than the preceding ones. the intentions of the existing process which exploded during the thomas nomination fight make the restoration of what came before the judge's nomination made a practical impossibility. having said that, mr. president, we face an immediate question, can the supreme court nomination and the confirmation process so

by this court and bitterness be repaired in a presidential election year? history teaches us this is extremely unlikely. some of the nations he said heated confirmation fights have come into election years over the nomination of 1836. the senate's refusal to confirm the four nominations by president tyler in 1844. the single vote rejections of nominees by the lame-duck presidents fillmore and buchanan in the mid-19 centuries and the narrow approval of the justices lamar and fuller in 1888.

overall, when one of for supreme court nominations has been the subject of the significant opposition figure raises to one out of two when such nominations are acted on in the presidential years. in our century there are two particularly poignant cases. the 1916 confirmation fight over louis brandeis, one of america's greatest jurists of the fight filled with anti-semitic attacks on the nominee is an example of how the politics can pollute the kind deleted as to which candidate. a filibuster against the

nomination and an assault was launched by the senators before president johnson had even named his selection as similarly well-known by all that follow this. indeed many pundits on both the left and the right question the ability to process the nomination a year before the 1988 campaign without becoming entangled in the presidential politics. i believe this concern was misplaced and disproven it illustrates how such politicization can undermine confidence in the confirmation process. moreover, the tradition against the acting on supreme court nominations in the presidential year is particularly strong when the vacancy occurs in the summer or the fall of the election season.

the bus while a few justices have been confirmed in the summer or the fall of the presidential election season, such confirmations are rare. only five times in our history, mr. president, have summer or fall confirmations been granted with the latest being augus august 1846, the confirmation of the justice. in fact, no justice has been confirmed in september or october of an election year, the sort of timing that has become standard in the modern confirmation process. indeed, in american history only one attempt to push through a september or october confirmation was the failed campaign to approve the nomination in 1968. mr. president, i cannot believe

anyone would want to repeat that experience in today's climate. moreover, the five justices who were confirmed in the summer of an election year, all five were nominated for vacancies that had arisen before the summer had began. indeed, justice greer's confirmation was for the vacancy on the court tha but was more tn 2-years-old, as was the july confirmation of the justice samuel miller in 1862. the bus more relevant for the situation that we could be facing in 1992 is this statist statistic. the vacancies have occurred in the summer or the fall of a presidential election year it's never not once did the senate confirm a nominee for these

vacancies before the november election. 181,828th of 1864 and 1956. the president himself was held making a nomination until after the election was held. in both of the instances where the president did insist on naming the nominee under the circumstances, edward bradford in 1952 and in 1968 the senate refused to confirm the selections created us as we enter the summer of the presidential election it is time to consider whether this broken string of a historical tradition should be broken. in my view o with history

supports, common sense dictates in the case of 1992. given the unusual prevailing of the nomination, the need for some serious evaluation of the nomination and confirmation process and overall level of bitterness that infects our political system and this presidential campaign already, it is my view that the prospects for anything with respect to the supreme court nomination of this year are remote at best. of president ronald reagan and the last selections for the court, the two were not confirmed and two more were approved with the most votes cast against them in the history of the united states of america.

they played far too large a role in the ronald reagan and bush nominations today. one can only imagine that becoming overarching if a choice i made this year assuming a justice announced tomorrow he or she was stepping down. should the justice redesign this summer and moved to name a successor actions that will occur just days before the convention and we speak for the republican convention meet some of the process that is already endowein doubt in the minds of y will become distrusted by our. the senate consideration under these circumstances is it fair to the president, to the nominee or to the senate itself.

mr. president, where the nation should be treated in the consideration of the constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and both ends of pennsylvania avenue. as a result, it is my view if the supreme court justice resigned tomorrow or the next several weeks or resigned at the end of the summer, president bush should consider following the practice of the majority of his predecessors and not name a nominee until after the november election is complete. the senate mr. president must consider how it would respond to the supreme court vacancy that would occur in the full throes of an election year.

it is my view if the president goes the way of president fillmore and johnson and impresses the nomination, the senate judiciary committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over. and i sadly predict that this is going to be one of the dirtiest presidential campaigns we will have seen in modern times. i'm sure after having uttered these words, some will criticize such a decision and say there was nothing more than an attempt to save a seat o the seat on thn hopes that the democrats would be permitted to fill it but i

wouldn't be our intention, mr. president, if that were the course that we were to choose to not consider holding hearings until after. instead, it would be our pragmatic conclusion that once the political season is underway, and it is, action on the supreme court nomination must be put off until after the campaign is over. that is what his fair to the nominee and essential to the process. otherwise it seems to me mr. president, we will be in deep trouble as an institution. others may fret that this approach would leave the court with only eight members for some time. but as i see it, mr. president, the cost of such a result, the need to reargue three or four cases that will divide the doubs for-for are quite minor compared to the cost that a nominee, the

president of the senate and the nation would have to pay for what would assuredly be a bitter fight no matter how good a person is dominated by the president if th of the nominatie to take place in the next several weeks. this may be the only course of action that the historical practice and in practical realism can sustain. similarly, my views on the need for the philosophic compromise between the branches would not be sold and but rather the prospects for such compromise would be naturally enhanced. let me start with a nomination process and how the process might be changed in the next administration whether it is a democrat or republican.

it seems clear to me that within the bush administration the process of selecting the nominees has become dominated by the right. intent on using the court to implement and order conservative social agenda that the congress and the public have rejected. in this way all of the participants in the process can be cleared well in advance of how i intend to approach any future nominations. with this in mind let me start t with a nomination process and how the process might be changed in the next administration and how i would urge to change the judiciary committee where i could meet the chair man in the next administration. it seems clear to me that within the bush administration, as i said, the process has become dominated by the right.

instead of using the court, in seeking the compromise. as i detailed during the hearing the debate over judge thomas's nomination, this agenda involved changing all three of the pillars of the modern constitutional law. i might add that the president has the right to hold these views. the president has a right to try to make his views prevail legislatively and otherwise but let's make sure that we know at least from my perspective what fundamental changes are being sought. and there are three pillars of the constitutional waters off to be changed. first, it proposes to reduce the high degree of protection that the supreme court has given individual rights when they are threatened by governmental

intrusion. in parallel our freedom of religion, speech and personal liberty. and i'm not just talking about abortion. second, it proposes those who share the view for this radical change. it proposes to increase the protection given to the interest of property when our society seeks to regulate the use of such property. in parallel to the law concerned in the environment, worker safety, zoning and consumer protection. and the third objection is sought to change the third pillar of the modern constitutional law. it proposes to alter the separation of powers to move more power in our three branches of government in the divided

government and separated. and hurling the bipartisan independent regulatory agencies and modern regulatory state. as i noted before, efforts to transform the confirmation process into a good-faith debate over these philosophical matters as was the confirmation process has been thwarted by extremists in both parties. these are legitimate issues to debate. those who hold the view that we should change these three modern pillars of constitutional law have the right to hold the views to articulate them and have been debated between the american people. but this debate has been thwarted by extremists in both parties into cynics that had urged nominees to attempt to conceal their views to the greatest extent possible.

and the president unwilling to concede that his agenda in these areas is at odds with the will of the senate and the american people seems determined to remake the court and migh likele the wall in this direction. in light of this, i can have only one response, mr. president. either we must have a compromise in the selection of future justices, or i must oppose those that are a product of his ideologically dominated process as is the right of others to conclude they should support nominees who are a product of this process. put another way, if the president doesn't restore the historical tradition of genuine consultation before the white house and the senate on the supreme court nominations, orrin said, restore th the colin prace of the president who chose

nominees who strode to the middle ground between the divided political branches then i shall oppose the future nominees immediately upon their nomination. this isn't a request that the president relinquish any power to the senate without its refrain from exercising any prerogatives he has this president. rather it is my statement unless the president chooses to do so, i will not let the power i have in the process to support the confirmation of this election. as i noted before, the practice of the many presidents throughout history support my call for more executive consultations. more fundamentally, the text of the constitution itself, the advice and consent to describe the role and the appointment

demands greater inclusion of the process. while this may seem contentious, i believe that it's nothing more than a justified response to the politicizing of the nomination process. to take a common example, the president is free to submit to the congress any budget that he so chooses. he can submit one that reflects his conservative thought were that straddles the differences between his view and hours. that is his choice. but when the president has taken the former course, no one is as surprised or outraged when democrats like myself have responded by rejecting the president's outlay. if the president works with a philosophical or moderates betrays to reflect, then they

deserve support-if but when he continues to ignore this divide and to pick nominees with views and dogs from the constituents that elected me with an even larger margin than they elected to him, then his nominees are not entitled to my support in any shape or form. i might note parenthetically let me be very specific if in this next election the american people conclude that the majority should be moved on the side of the aisle, that there should be 56 republican senators and 256 democratic senators, 44 democratic senators instead of 56 or 57 democratic senators. and at the same time, they choose to pick bill clinton over george bush we will have a divided government. in a divided government she must

seek the advice of the republican senate. otherwise the senate would be entitled to say i reject the nominees attempting to remake the court in a way with which i disagree. as i say some view this position is contentious while others i suspect and in fact i know as a presiding officer knows as well as i do others will say that i am not being contentious enough. they suggest that since the court has moved so far to the right already but it's too late for a progressive senate to accept candidates from the administration.

they would argue liberal candidates which are not going to come nor is it reasonable to expect them to come from the different president. but i believe that so long as the public continues to split its confidence between the branches, compromise is a responsible course both for the white house and for the senate therefore i stand by my position, mr. president. if the president consults and cooperate or moderates the selections absent the consultation, then his nominees may enjoy my support as the justices kennedy. but if he does not as it is the president right then i will oppose the nominees as it is my right. once the nomination is made, the nomination process begins, mr. president. and here it has been a dramatic

change from the nomination in 1987 to the thomas nomination in 1991. let me start with this observation. in retrospect the actual nomination of judge had been so misremembered that the observers completely overlooked one great feature of these events. that is, in most respects, the nomination served as an excellent model for how the contemporary nomination and confirmation process and debate should be concluded and deducted. shortly after he was nominated after studying his records and writings and speeches i announced my opposition to the confirmation and many others did the same. what ensued was an educational summer. i laid out a basis for my

position and that the two major national speeches and other senators did likewise. the white house issued a very detailed paper proposing to outline the judge's philosophy. a group of consultants to the committee issued a response to this white house paper and they put out a response. as i mentioned earlier by and large it was an exchange of views and ideas between the two major constitutional players in the controversy. the president and the senate which the nation could observe and evaluate. it's not as a dramatic skeptical to see how they would jockey for

the position on the nominations but to see the final act of the debate. major newspapers accused me of rendering the verdict for stand trial later for the nominee. this was unfortunate because the criticism in the early position in the nomination process has resulted in as i see it before negative consequences for the confirmation process. first, it gave rise to a powerful mythology that equates the confirmation hearings to something closer to the trials than legitimate legislative proceedings. the result has been in the end even more criticism for the process when the hearings do not meet this artificial standard of the trial.

confirmation hearings are not trials. we are not a court. we are a legislative body. there are congressional hearings. senators are not judges. we are senators. our decision on a nominee is not a natural rolling as the judge would render. it is as the constitution designed it a political choice about values and philosophy. we should dump this trioval mythology and the matters that go with it. our team debates which way it goes in the confirmation process and over what the standard or the reviewer is over which side has the burden of proof.

as it is for the maid tv for decision-making patent bills and voting on a constitutional amendment. on the criticism of the early opposition based on specifically stated reasons. the criticism of taking the early stance on the nominees has pushed the senators out of the summer debate over confirmation. most especially the interest groups on the left and the right. and by senators on the left and the right are doing prior to the hearing about the philosophy for

the nominee. when we stood back, that vacuum was filled by the left and the right as it is their righ righti mighby mydad, but they are the y voices we heard in the debate. they shaped in the debate the ideas and besar recounts washington at its worst. the nomination hungers down with the briefers at the justice department preparing for the hearing as a football team prepares for a game watching the films of previous hearings into studying the mannerisms of each senator, memorizing the questions that have been asked, practicing and rehearsing the answers. outside of the branches the efforts are underway to form coalitions to launch tv attack campaigns can issue press

releases and shout loudly past one another. this transformation hit its apex during the nomination when by my count there were twice as many summer news stories about how interest groups were lining up on the nomination and that there were about the nominee's views. as with our presidential campaigns, public intention and the hearing. have has been turned away from the principles about real issues into a superficial scrutiny of the horse race. it's is the nominee.com is the nominee down? and discussions among the spin doctors and insider, insiders as about what the chances are.

the only way to move the focus from the tactics of the confirmation debate the substance is the senators to state our position on the nomination if possible assuming we know the facts of the philosophy or believe we know the facts related to the philosophy of the nominee. and to debate them free and open before the hearing process begins. will the senators remain undecided about the nomination i hope more will do what i do with the nomination and try to publicly address the issues of concern for the confirmation. before the hearings get underway. to stand on the floor and say i do not know where the nominee stands on such and such but what i want to know as a senator is what is his or her philosophy on whatever is concerned of the

individual member and begin the debate on the issues because when we don't, mr. president, we have learned this town and the press and interest groups and political parties fill the vacuum. the notion of three months of silence in washington is something that isn't able to be tolerated by most who live in washington and work in washington so what happened? the vacuum is still by pundits, lobbying groups, interest groups, ideological fringes divining the debate and dictating. third, mr. president, if open against early opposition to the nominee that has created an imbalance over the confirmation.

for it seems though similar taboo exists against the support for the nominee. i haven't read a single article, heard a single comment when the senator stands up and says i support the nominee the president named 27 seconds ago no one says that's outrageous. how can that woman or man make that decision before the hearing? they say that's okay. it's okay before a nominee, before the hearing began' against a nominee. in the case of judge thomas while no senator announced his position, excuse me while most announced the opposition before the hearing started, at least 30 senators announced their support

for the nominee before the committee first met. no senator said i'm opposed. 30 senators said they were for it. i'm not criticizing that. thus my good friend for senator souter and for judge thomas along with many other senators became outspoken advocates as it is their right and as they firmly believed they became outspoken advocates from day number one while not a single senator spoke in opposition. in my view, such an imbalance is not healthy and again it puts too much responsibility forward and control over the confirmation debate in the hands of interest groups instead of elected officials.

>> back in 1992 in the aftermath of the polarizing confirmation process involving clarence thomas who had been nominated by president bush with no consultation just four days after the great thurgood marshall retired i took to the floor to speak about the supreme court nominating process. the senate majority leader coming it he's my friend, mitch mcconnell and others today have been quoting selectively from the remarks and attempt to justify refusing the chief judge garland did a fair hearing and vote on the florida senate. they completely ignore the fact that at the time i was speaking of the dangers of nominating an extreme candidate without proper

consultation. they completely neglected to quote the bottom line, and i quote come if the president consults and cooperates with the senate come if moderates the selections then he is nominees may enjoy my support as did justice kennedy and justice souter. i made it absolutely clear that i would go forward to the confirmation process even a few months before the presidential election. if the nominees were chosen with the advice and not nearly the consent of the senate just as the constitution requires. my consistent advice to presidents of both parties including this president has

been that we should engage fully in the process of advice and consent. and my consistent understanding of the constitution has been the senate must do so as well, period. they have an obligation to do so. because there is no vacancy after the confirmation, we can't know what the president and the senate might have done. but here is what we do know. every time as the ranking member or the chairman of the committee, i was responsible for the eight justices into the mine total nominees on the supreme court or that i hate to say this, anyone alive. i can't be that old. [laughter]

every nominee was greeted by the committee members. every nominee dot the committee hearing. every nominee got out of the committee even if they didn't have sufficient votes to pass within the committee because i believe the senate says the senate must advise and consent. and every nominee including justice kennedy got an up and down vote. not much of the time are most about every single solitary ti time. so now we hear all this talk

about the joe biden rule. it's frankly ridiculous. there is no rule. it doesn't exist. there is only one rule that i ever followed in the judiciary committee. and that was the constitution's rule of advice and consent. article two of the constitution clearly states whenever there's a vacancy and one of the courts created by the constitution itself, the supreme court of the united states, the president shall not a president shall appoint someone with the advice and consent of the united states senate. advice and consent includes consulting and voting. nobody is suggesting that individual senators have to vote

yes in any particular nominee. voting no is always an option and it is their option. but saying nothing, seeing nothing, reading nothing, hearing nothing and deciding in advance simply to turn your back before the president even names in nominee isn't an option the constitution leaves open. it's a plain abdication of the senate constitutional duty. it is an abdication quite frankly that has never occurred before in our history. you've been watching a program looking at the current supreme court vacancy with an apparent impasse between the white house, democrats and republicans we look back at what some of today's leaders have said in the

past years. we will return with part number two of the program in just a few minutes. but first, some scheduling information. >> the nuclear security summit has been taking place here in washington the past couple of days. later today we will hear remarks from president obama at the closing news conference. he will speak at the convention center. it starts live at 5:40 p.m. on c-span.

historic decisions with constitutional drama behind some of the most significant decisions in american history. >> john marshall says this is different. the constitution is a political document. it sets up the political structures. but it's also the law and we have the courts to tell what it means and that is fine on the other branches. >> with sets him apart in the fact that it's the ultimate

presidential case is exactly what you don't want to do. >> who should make the decisions about the debate in the supreme court said it should make the decisions about the debate. >> tonight we look at the case to define the limits of the free speech particularly during the wartime creating the present danger standard. tonight at 10 p.m. eastern on c-span and c-span.org. we return up to the feature nowe program looking at the current supreme court vacancy following the death of antonin scalia in february. you are watching a special presentation on how washington handles the supreme court confirmation process. we are good joined by david hawking is editor of roll call and the author of the blog. we are going to talk about the george w. bush administration

now where you had bot have boths in control of the senate at one time or another and a number of flights over thfights over the d the filibuster rules. how did the confirmation process play out enough wa? >> he went to the supreme court and there was only after he was reelected in 2005 when he had two seats to fill in a short period of time. again, yet another period of thd government in the reelected republican democratic senate in the summer of 2005, the justice sandra day o'connor announces her retirement and george w. bush nominates john roberts to be an associate justice in a couple of months to lie and justice rehnquist dies and george w. bush decides he likes john roberts well enough to nominate him as the chief justice and then he has an

associate justice job to go and nominate the white house counsel name. myers who is viewed as a doctrinaire conservative by the republicans so she has to be withdrawn because she has insufficient support and then george bush comes back and nominate samuel alito. the reason that these were so controversial in the end, roberts is not all that controversial but alito is quite controversial is because all depends on these aspects of the confirmations like who's bee ben justice, who the nominee would replace and john roberts ultimately was replacing rehnquist so it was a downed onlindown theline strict constrt conservative replacing another. in other words i was rehnquist and justice roberts was perceived as doing the same way. whereas in the end come samuel alito was a true conservative

come a favorite of the conservative movement to replace sandra day o'connor as a swing vote. >> a favorite on the social conservatives? to make a favorite of the social conservatives and economic and that the regulatory conservative on the bench on the third circuit in philadelphia where he was the judge before. gently down the line in favor of things wit that social and econc and regulatory conservatives. >> let's look at a couple speeches here we are going to show you two of them, one with beth senator patrick leahy in 2003 and was then that member of the judiciary committee and we will also hear remarks from senator orrin hatch of utah. what's the first to some of the things we know. we know because you reported that they claimed to be the american idol.

we know instinctively the boston red sox break our hearts for the 85th straight year. we know and this is something you can speculate that the bush administration will look at the six of diamonds or spades or somethinweresomething in the ne. we know at least one other democrat went to the presidential contest they might as well but open to everybody. we know it's going to rain the field of the next four weekends because that's what it does but here's what we don't know, will there be a supreme court vacancy later this week or next. i might mention if anybody knows the answer raise your hand because i will let you have the podium because they would much rather hear from you. regardless of whether we have a

supreme court vacancy this week this month or later this year regardless whether everyone stays put at the court until after the next election and whether there is a republican or democrat in the white house where the vacancy occurs i have a few thoughts i would like to share because i think these have covered another wh it matter whe white house. since the supreme court's intervention in the presidential election contest in the bush v. gore case there's been a lot of speculation about the resignations from the court and of course the speculations have increased substantially this year. over the last several weeks every article about the court and its decisions has been leadinleading anleading in there excellent supreme court reporters here who know what it's like. it's not just what the decision

meant that there've been activists from the republican party pressing him to name a reliable vote. two independent be trusted and often they detoured david souter and he is apparent to show the kind of judicial independence to the constitutional principles that the founders of this country ambition and ipad a kind of independence the nation needs of the federal judiciary that's been and is still the envy of the world. i remember when the soviet union broke up a group of new members came to washington to visit the members of congress and signed the conference room an romantice

of your position let us ask you one question and i said certainly. they said we have heard that there are actually cases where people sue the government in your country and the government loses. i said it happens all the time. they said and you don't replace the judge immediately when that happens? [laughter] it struck me how much different we are and how much we can show the rest of the world if we stay independent in our judiciary. we have seen the stories about the planning and fundraising by political or the republican groups on both sides of the debate. they prepare for what has been characterized as an upcoming pension confirmation battle. just this week in the wake of the supreme court's 5-for decision on the action and "the new york times" read angry groups seek justice who oppose affirmative action and needless to say all of america is not

fixated on the future of the supreme court many americans are as those who are paying attention the most and understand how great the stakes are for the nation so my message today is that this battle doesn't have to be armageddon. they are tried and tested ways to avoid that and for the sake of the independence and credibility of the court and the divided american people this is a time for the president to try a unified approach. the last several weeks as the storm clouds have been gathering has been urging the president to choose the better half along with senator daschle. another senate democrat has asked the president to consult with the leaders on both sides of the oil i aisle in advance oa supreme court nomination the goal was to help the president put forth a consensus nominee who would unite a divided unite

all of the americans who can be confirmed anywhere from 95 to 100 votes in the senate. we seek to head off a contentious battle in which the judicial activism in the party would rival in the confirmation of the controversial nominee by the narrow margin. is as deep as any time you can cite in this country since the

civil war. it's not just historical accident that we've been experiencing political events we've not seen for more than 100 years. the last few years we've had government shutdown . we've had an unsuccessful and unnecessary presidential impeachment. we had narrowly divided houses of congress. and the majority control of the senate and house go back and forth. we've had the most hotly contested presidential election contest in this country. the supreme court is at a state of 5 to 4 opinions including important decisions this week narrowly upholding affirmative action and the most dramatic of all was the court ruling less than three years ago that ruined determined the present the winner of the presidential election. go why does it matter so much? what are the implications for all of us as americans? some of the courts recent decisions vividly show what's at stake.

take for example the case of patricia garrett, a nurse in birmingham alabama. a mother of three. she was the director of neonatal services for the university of alabama and she was diagnosed with breast cancer. she took a leave of absence to undergo surgery, radiation treatment. patricia garrett survived breast cancer but when she returned to work for employer refused to not only promote her, her employer demoted her. and she sued in federal court under the americans with disabilities act, that was overwhelmingly voted by members of congress to do an american suffering from a disability rating illness. president reagan considered it one of the proudest things he had done in his presidency and alabama challenged that wall as an infringement of its power and in 2005 and a five ãfour decision, chief justice

rehnquist wrote that the congress acted beyond its power and the seats could not be sued for damages in federal court. discriminating against people with disabilities. and just one of the five majority justices voted the other way, states would've been prevented by federal law from firing and demoting people like patricia garrett for getting cancer. and a key provision to the americans with disabilitiesact would have been upheld. in that case , that reflects a recent trend where that narrow majority of the supreme court creates new restrictions on federal rights and protections are new legal theories are being promoted by a cadre of dedicated conservative activists, often in allowance with powerful and wealthy special interests. not only does such a decision undermines environmental protection but we argue the congress does not have the power to prevent the destruction of waters and

wetlands of private habitat for migratory birds and in that case, anotherfive ãfour decision , the supreme court called into question more than 80 years of precedent the protection of migratory birds was indeed important federal interest that congress could protect. it almost suggested that migratory birds read roadmaps and stop at state lines. it sounds a little like john grisham's novel the pelican brief. always learned about ecosystem in the past century and the importance of federal protection of these areas and the efforts of people inboth parties to get those protections . it's hard to believe a bare majority of the supreme court would adopt the arguments of very conservative activists in this area. but after decades of practice and protection of such habitats by federal law, a narrow

majority of the supreme court decided the clean water act did not allow the army corps of engineers to protect nonnavigable wonders from pollution and destruction. these are just a couple of examples out of nearly 160 decisions of the supreme court decided by a one-vote margin. since 1994.in fact, with the supreme court's growing activism, a number of important issues decided by a single vote is mounting. the last four years, nearly 80 decisions were by one vote and that 80 out of only 300 decisions. the supreme court so closely divided, the replacement of just one judge could tip the balance one way or another. could tip whether congress and federal agencies may regulate our water.

whether we can preserve the diversity of media, whether we can reform campaignfinance laws, whether the fundamental protections to our privacy and liberty are going to meme narrowed . all these matters and a lot of others are subject to review by the supreme court. look no further than the court's decision to uphold the family and medical leave act. there are role played by on justice, justice o'connor. all these are compelling reasons why the vacancy means so much to all of us. it's also a compelling reason why the president and the senate should work together in deciding who's going to fill such a role. do we fill it with somebody who will divide us or do we fill it with somebody who will unite us? true consultation is in the best tradition of our republic. so it's regrettable that with varying degrees of hubris and what rock partisanship, some of the administration are regarding confrontation on just about everything a four letter

word. the constitution divides employment power between the president and senate. it expects senators to advise the president, not just rubberstamp his charges and it says advise and consent, not nominate and rubberstamp. in fact for most of the constitutional convention, founders of this country assigned the constitutional power to appoint judges exclusively to the senate and toward the end of the convention, it's part of the system of checks and balances it was then shared between the senate and the president. shortly after, william f clay noted this in his famous turne . whoever tends strictly to the constitution of the united states will readily observe that the president was an important one. the lesson has been the great check, the regulator and corrector, balance of this government.the role in this process is not secondary or comprised simply to a vote. it's been clearly