Senate Democrats

Reid Statement Regarding Potential Supreme Court Vacancy

The following statement from Senate Democratic Leader Harry Reid has been submitted into today’s Congressional Record:

“As the Senate prepares to adjourn for the July 4 recess, one of the most noteworthy developments is an event that has not occurred. Despite widespread speculation, there have been no announced retirements from the United States Supreme Court.

“We are all aware that Chief Justice Rehnquist has faced health challenges. I am impressed with his courage and fortitude.

“Many feared he would not be able to attend the January inauguration to administer the oath of office to President Bush. But there he was, braving the cold to perform his constitutional duty. Many thought he would retire from the Court long before the end of the Supreme Court term. But there he was last Monday, presiding over the Court’s final session and announcing an important First Amendment decision in which he had authored the majority opinion.

“I was not a member of the Senate when William Rehnquist was nominated as an Associate Justice in 1971 or when he was promoted to be Chief Justice in 1986. He was not unanimously confirmed to either position. But the Chief Justice has won many new admirers in the Senate in recent years. We appreciate the dignity and clarity with which he has led the federal judiciary for almost 20 years. I know I speak for all of my colleagues in commending Chief Justice Rehnquist for his tremendous service to the Court and to the country. I hope he stays on the bench for years to come.

“Whenever the Chief Justice or any of the Associate Justices decide to retire, I hope and expect that the President will take seriously the “Advice” part of “Advice and Consent.” This is not just about the Supreme Court. The President should seek the advice of the Senate regarding all nominees. But consultation regarding a Supreme Court vacancy is especially important.

“The Court is of paramount importance in the life of the Nation. These justices deal with complex legal issues that affect the lives of all Americans. It is the final guardian of our rights and liberties.

“There is a long tradition of presidents consulting with the Senate before a Supreme Court nomination occurs.

“In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from Senators and House members.

“In 1932, President Hoover gave Senator William Borah a list of the candidates he was considering to replace Justice Oliver Wendell Holmes. Borah persuaded Hoover to move the name that was on the bottom of the list to the top. That candidate, Benjamin Cardozo, was confirmed unanimously.

“In his autobiography, Senator Hatch takes credit for convincing President Clinton not to send the Senate potentially controversial nominees and instead to nominate individuals with broad bipartisan support. Both of President Clinton’s nominees, Ruth Bader Ginsburg and Stephen Breyer, were easily confirmed with Senator Hatch’s support.

“Last week, 44 Senators sent President Bush a letter urging him to use the Advice and Consent process to unite the country behind a consensus nominee. This built on the bipartisan agreement that averted the nuclear option earlier this year. At least two of the signers of that agreement, Senators Nelson of Nebraska and Salazar of Colorado, have separately written to the President to urge consultation. A third signer, Senator Pryor, spoke about the importance of consultation on the Senate floor last week.

“Consultation with the Senate is not an end in itself. The purpose of consultation is to help the President arrive at a consensus choice for the Court, a nominee like Sandra Day O’Connor who will bring the country together, not tear it apart.

“Meaningful consultation will ensure judges who are fair and independent and who are committed to protecting individual rights and freedoms.

“Meaningful consultation will ensure that the President’s judicial nominees are highly qualified men and women whose views are within the broad constitutional mainstream.

“And meaningful consultation will help us avoid a divisive episode like we saw over the nuclear option. There are too many important issues facing this country to waste the Senate’s time fighting over radical extremist judges.

“I recently had the opportunity to meet with the White House Counsel, Harriet Miers. Ms. Miers made clear that the White House is not yet prepared to engage in formal consultation with us regarding a possible Supreme Court vacancy because there have been no announced retirements from the Court. I respect that position.

“When a vacancy does arise, the President should obtain the views of Senate Democrats about individuals under consideration for appointment to the Court, consistent with the Advice and Consent Clause of the Constitution.

“Let me be clear: Real consultation does not consist of the White House asking Senators for the names of individuals we think should be considered for appointment to the Court. I am happy to provide such names, but that is not enough. Meaningful consultation under the Advice and Consent Clause means that the President presents the names of individuals he is seriously considering and seeks our views on those candidates.

“And, of course, the nomination of a candidate is just the beginning of the Senate process. There will be comprehensive hearings in the Senate Judiciary Committee and a thorough debate in the full Senate. Any advice that Senators provide to the President in advance of a nomination is, of course, subject to review in light of information that comes out during the confirmation process.

“As the President considers the range of individuals who might be considered for the Court, I hope he will not limit his search to sitting federal judges. History demonstrates the value of considering individuals who have achieved prominence in civic life outside of the judiciary. In this century, such diverse figures as former President William Howard Taft, Alabama Senator Hugo Black, and California Governor Earl Warren have served with distinction on the Court.

“The Senate may be especially fertile ground for finding a Supreme Court justice. Including Justice Black, some 14 Senators in American history have served on the Court. A current or former Senator would bring an important perspective to the Court’s understanding of legislative history, and the need to strike a balance between the will of the majority and the rights of the minority in our society.

“I have discussed publicly a number of current Senators who I believe are worthy of the President’s consideration. Each of these Senators possesses relevant legal experience and enjoys the respect and admiration of fellow Senators.

“Above all, I urge the President to work with the Senate at the appropriate time to identify a consensus nominee who can unite the country. With our country at war and our economy facing challenges, we don’t have time for controversial, confrontational judicial nominations. We need cooperation and consensus.

“Our Founding Fathers were brilliant to give the Executive and the Legislative Branch shared responsibility for choosing members of the Judicial Branch. When properly executed, this division of labor ensures that our judges will be independent and our rights will be protected.”