Averting judicial "Armageddon"

With a vacancy expected on the Supreme Court, Sen. Patrick Leahy warns President Bush not to wage ideological war over nominees.


Salon Staff
June 28, 2003 9:27PM (UTC)

Here are a few things we know:

We know that Ruben edged out Clay to be the American Idol.

We know the Boston Red Sox are poised to break the hearts of baseball fans throughout New England for the 85th straight year.

We know the Bush administration will trumpet the capture of the 8 of Clubs, or 6 of Diamonds or the 9 of Spades some time within the next ten days.

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We know some other Democrat will enter the presidential contest.

And of course we know that it will rain this weekend.

Now here is what we don't know:

Will there be a Supreme Court vacancy later this week or next? Actually, if anyone out there does know the answer to that, please raise your hand and we'll all be happy to turn the podium over to you.

Regardless of whether we have a Supreme Court vacancy this week, this month, or later this year ... regardless of whether everyone stays put on the court until after the next election ... and regardless of whether there is a Democrat or Republican occupying the White House when such a vacancy occurs, I have a few thoughts I'd like to share.

Since the Supreme Court's intervention in the 2000 presidential election contest in the Bush vs. Gore case, there has been a good deal of speculation about resignations from the Court, and the speculation has increased exponentially this year. Over the last several weeks, every article about the Court and its decisions includes some reading of the tea leaves about potential retirements. There have been salvos from activists in the President's party pressing him to name a reliable vote in their favor and disparaging some potential candidates as being too moderate or too uncertain to be trusted.

Often these critiques have detoured to defame Justice David Souter. His apparent offense is to show the kind of judicial independence and fidelity to constitutional principles that the Founders envisioned. And, I might add, with the kind of independence the nation sorely needs in a federal judiciary that has been and still is the envy of the world.

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We have all seen the recent stories about the planning and fund-raising by political or public interest groups on both sides of the debate, as they prepare for what has been characterized as an upcoming pitched confirmation battle. Just this week, in the wake of the Supreme Court's 5-4 decision on affirmative action, a subhead on the front page of the New York Times read: "Angry Groups Seek Justice Who Opposes Affirmative Action." Needless to say, while all of America is not fixated on the future of the Supreme Court, many Americans are, especially in this town. And it is those who are paying attention the most who understand how great the stakes are for the nation.

My message today is that it does not have to be an Armageddon.

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There are tried and tested ways to avoid that. And for the sake of the independence and credibility of the Court, and for the sake of the evenly divided American people, this is surely a time for the President to try a unifying approach.

For the last several weeks, as the storm clouds have been gathering, I have been urging the President to choose the better path. Along with Senator Daschle and other Senate Democrats, I have asked the President to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination. The goal is to help the President put forward a consensus nominee who would unite all Americans and who could be confirmed by the Senate with 95 to 100 votes. What we seek to head off is a contentious battle in which judicial activists of the President's party would revel in eking out confirmation of a controversial nominee by the narrowest of margins. That kind of victory would come at the expense of the rest of the country and of the Court itself.

Ours is a modest proposal, steeped in common sense and tradition.

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In our system of government, seeking consensus is a worthwhile value in its own right. But there are many compelling reasons beyond that. We are in a difficult period of our history. Not only do we face security, fiscal and global challenges, but we do so at a time when the electorate is evenly divided. The electoral division is as deep as any time you can cite since the Civil War. It is not an historical accident that we have been experiencing political events that we have not seen for more than 100 years. In the last few years we have had government shutdowns, an unsuccessful presidential impeachment, narrowly divided houses of Congress, shifting majority control in the Senate, and the most hotly contested presidential election contest in a century. The Supreme Court has had a spate of 5-4 opinions including an important decision this week narrowly upholding affirmative action. Most dramatic of all was the Court's ruling less than three years ago that determined the winner of a presidential election.

Why does it matter so much, and what are the implications for the American people? Some of the Court's recent decisions vividly show what is at stake. Take for example the case of Patricia Garrett, a nurse in Birmingham, Alabama, and mother of three. She was the director of neonatal services for the University of Alabama when she was diagnosed with breast cancer, and she took a leave of absence to undergo surgery and radiation treatments. Patricia Garrett survived breast cancer, but when she returned to work her employer demoted her. She sued in federal court under the Americans with Disabilities Act, which was passed by Congress to defend the rights of every American who suffers from a disabling illness. Alabama challenged that federal law as an infringement of its power. In 2001, in a 5-4 decision, Chief Justice Rehnquist wrote that Congress had acted beyond its power and that States could not be sued for damages in federal court for discriminating against people with disabilities. Had just one of the five majority Justices voted the other way, States would have been prevented by federal law from firing or demoting people like Patricia Garrett for getting cancer, and this key provision of the Americans with Disabilities Act would have been upheld.

That case is part of a recent trend in which a narrow majority of the Supreme Court creates new restrictions on federal rights and protections, in accord with new legal theories being promoted by a cadre of dedicated conservative activists, often in alliance with powerful and wealthy special interests.

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Another such decision undermined environmental protections. In a recent case, these activists argued that Congress did not have authority to prevent the destruction of waters and wetlands that serve as critical habitat for migratory birds. In that case, another 5-4 decision, the Supreme Court called into question more than 80 years of precedent that the protection of migratory birds was indeed an important national, federal interest that Congress could protect. Sounds a little like John Grisham's novel "The Pelican Brief," doesn't it? With all we have learned about the delicate ecosystems of wetlands in the past century and the importance of federal protection of these areas, it is hard to believe a bare majority of the Supreme Court would adopt the arguments of conservative activists in this area as well. After decades of practice and protection of such habitats by federal law, a narrow majority of the Supreme Court decided that the Clean Water Act does not allow the Army Corps of Engineers to protect non-navigable waters from pollution or destruction.

These are just two examples out of the nearly 160 decisions of the Supreme Court decided by single votes since 1994. In fact, with the Supreme Court's growing activism, the number of important legal issues decided by a single vote is mounting rapidly, with nearly 80 such decisions in the last four years alone, out of a total of only about 300 cases. That's about one-fourth. With a Supreme Court so closely divided over the most important legal issues of our time, the replacement of just one judge on that court could tip the balance one way or the other. Whether Congress and federal agencies may regulate arsenic in our waters, whether we can preserve diversity in media, whether we can reform campaign finance laws and whether fundamental protections to our privacy and liberty ought to be narrowed, all these matters and more will be subject to review by the Supreme Court.

For another recent reminder of what's at stake for American families from coast to coast, look no further than the Court's decision to uphold the Family and Medical Leave Act, and the pivotal role that Justice O'Connor played in that case.

All of these are compelling reasons why filling any Court vacancies matters so much ... and also why the President and the Senate should work together in filling them.

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True consultation about nominations is in the best traditions of our republic. So it is regrettable that, with varying degrees of hubris and raw partisanship, some in this Administration have regarded consultation on just about everything as a four-letter word. The Constitution divides the appointment power between the President and the Senate and expects Senators to advise the President, not just rubber-stamp his choices. In fact, for most of the Constitutional Convention the Founders had assigned the constitutional power to appoint judges exclusively to the Senate. Toward the end of the convention, as part of the system of checks and balances, the appointment power was shared between the Senate and the President. Shortly afterward, William Maclay noted this in his famous journal: "[W]hoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one -- no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government . . . ." The Senate's role in the process is not secondary and is not confined simply to a vote. The Constitution expressly speaks of the Senate's authority to "advise" as well as the power to "consent," which includes the power to withhold such consent.

In light of this history of the advice and consent clause of the Constitution, I was especially disappointed last week to see reports suggesting that President Bush is inclined to reject our overture to employ collaboration to head off a bitter fight. The President's spokesman was way off base when he termed the idea of bipartisan consultation, quote, "a novel new approach," and when he suggested that consultation with Senators before a Supreme Court nomination would somehow violate the Constitution. That constitutional interpretation would draw an F from any high school civics teacher. Other presidents have consulted with the Senate in choosing Supreme Court nominees, with good results for the Court and for the American people.

Recent history demonstrates the tradition and value of consultation in advance of a nomination, and some of the best evidence and arguments for this come from some of my Republican friends. Back in 1993 and 1994, when the last two vacancies arose on the Supreme Court, President Clinton worked with Senator Hatch and Senate Republicans to chart a course for the selection of moderate, consensus nominees with substantial federal judicial experience. In his recent book "Square Peg," Senator Hatch tells how in 1993, President Clinton had the first opportunity of any Democratic President in 26 years to nominate someone to the Supreme Court. He describes how President Clinton, himself, called Senator Hatch, who then was the Ranking Member of the Senate Judiciary Committee, and talked to him about potential nominees, including Secretary Bruce Babbitt. Senator Hatch says he told the President that Secretary Babbitt's confirmation, quote, "would not be easy," and he explained, quote, "that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court." Senator Hatch mentions suggesting the names of two moderates, Stephen Breyer and Ruth Bader Ginsburg, both of whom were eventually nominated and confirmed, as he notes, "with relative ease." Indeed, 96 Senators voted in favor of Justice Ginsburg's confirmation, and only three Senators voted against; Justice Breyer received 87 affirmative votes, and only nine Senators voted against him. Senator Hatch later commended President Clinton for working with the Republican minority to find Supreme Court nominees almost everyone could acclaim.

In seeking Senators' advice before making a nomination, President Clinton was following the tradition of many past Presidents. For example, Senator Arlen Specter, who is widely respected on both sides of the aisle, acknowledges the value of presidential consultation in advance of a nomination, and he has said this, quote: "A historical event that was widely reported comes to mind about Senator Borah, the chairman of the Judiciary Committee, conferring with President Hoover in 1930 and President Hoover showing Senator Borah a list of 10 prospects and him saying, 'I like number 10,' who turned out to be Justice Cardozo, who had an extraordinary record on the appellate court of the State of New York, New York Court of Appeals." Senator Specter concluded by saying: "I think such a pool might be really very advisable, providing some very substantial diversity." Senator Specter said that back in 1993, when he also said that the Senate, quote, "has a role to advise."

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Even the Reagan Administration consulted with Democratic Senators before nominating Robert Bork. Problem was, they chose to consult but not to listen. That controversial nomination was voted down by the Senate Judiciary Committee and reported to the Senate with a negative recommendation. Ultimately the nomination was defeated in a vote of 42-58.

So history shows that the Senate's advice traditionally has been given before a nomination was made, not after. Consultation in advance of a Supreme Court nomination makes good governing sense, it makes good constitutional sense, and it makes good political sense. When there is bipartisan consultation in advance of a Supreme Court nomination, a Supreme Court battle can be avoided and a highly regarded, consensus nominee can usually be agreed upon. On the other hand, a phone call informing senators of a nomination just before Fox News breaks the story is not real consultation.

In its report on the Supreme Court Appointment Process the Congressional Research Service has said it plainly, quote: "It is common practice for Presidents, as a matter of courtesy, to consult with Senate party leaders as well as with members of the Senate Judiciary Committee before choosing a nominee." Far from a novel suggestion, what Senate Democrats have called for has been standard and accepted practice. Finding consensus nominees serves the Court and the American people well. If the President's choice unites and invigorates a narrow wing of his party, it will end up dividing the American people.

Who should the President's nominee be? That is not a question I came here today to answer. I still harbor the hope that the President will agree to seek the confidential counsel of Senate leaders, which is the setting where that discussion would be most helpful. I can say this: Other conservative Republican Presidents have nominated Justices to the Court who had the kind of fidelity to the law that we all respect. For example, Republicans in the mold of Justice Lewis Powell -- nominated by President Nixon in 1971 and confirmed, 89 to 1, by a Democratic Senate -- who understand the importance of the Court's independence and who know how to be conservatives without being ideological activists. They have a strong commitment to our shared constitutional values of individual liberties and equal protection. They have had a demonstrated record of commitment to equal rights. They showed the independence and thoughtfulness that Justice O'Connor has so often shown.

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The choice of uniting or dividing the American people over a nominee is the President's, and the President's alone. If the President wants to incite a confirmation battle, he can choose someone because of their ideology or record of activism, in the expectation that they will deliver political victories. But the Supreme Court should not be an arm of the Republican Party, nor should it be a wing of the Democratic Party. If he chooses that course, the President will have done so knowing full well that he is starting a confirmation confrontation. I hope that instead he will act in a way that unites the nation.

Republican activists are reported to be consulting closely with presidential advisor Karl Rove. If they convince the President to choose a divisive nominee in order to tilt the ideological balance on the Supreme Court, they will not prevail without a difficult Senate battle. And even if they do, what will they have wrought? While these partisans would celebrate the ideological takeover of the Supreme Court -- even if, and maybe even especially if, it is a victory won by the narrowest of margins -- the American people would be the losers. The legitimacy of the judiciary would have suffered a damaging blow from which it may not soon recover. Such a contest would itself confirm that the Supreme Court is just another setting for partisan contests and partisan outcomes. People would begin to perceive the federal courts as places where "the fix is in."

All of this is why preserving and strengthening respect for the courts is especially important right now. This is not the time, and a vacancy on this Supreme Court is not the setting, in which to deepen the Nation's political and ideological divisions.

Our Constitution establishes an independent federal judiciary to be a bulwark of individual liberty against incursions or expansions of power by the political branches. The independence of our federal courts has been called the crown jewel of our justice system. But that independence is at grave risk when a President seeks to pack the courts with activists from either side of the political spectrum. Admittedly, presidents face great temptation to try to pack the courts to achieve ideological ends. Our second President, John Adams, tried it. Franklin Roosevelt's famous Supreme Court packing scheme was not successful, due in part to a filibuster in the Senate. No matter how great the temptation, one of the worst mistakes a President could make would be to try to engineer an ideological takeover of the Supreme Court. If successful, such an effort would lead to decision-making based on politics and forever diminish public confidence in our justice system.

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Senate Democrats are trying to counsel the President to step back from the brink. In our lifetimes, there has never been a greater need for a unifying pick for the Supreme Court.

The independence of the federal judiciary is indivisible from our American ideal of justice for all. We should expect and accept nothing less.


Salon Staff

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