Biden Rules

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BIDEN RULES

embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end

o he specrum

To pu i anoher way he cener and he lef which won such broad public suppor or he posiion

agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans

This has given rise o even more rusraion abou he process rom boh paricipans and observers and

was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on

Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions

abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old

legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be

cover quesions abou aborion when hey have nohing o do wih aborion

Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion

he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public

he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how

many imes I said ruhully and rankly and I quoe

No orge abou aborion To know how you will ace he many unknown quesions ha will conron he

Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy

No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how

powerully he issue dominaes our process

(Mr KOHL assumed he chair)

Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha

could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes

Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork

was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors

ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has

developed ha claims oherwise

We are old ha he hearings were iled agains Bork bu here were more winesses who esified or

him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well

we simply alernaed pro-con pro-con panel afer panel

And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he

iming--all unair all engaged in by hose who opposed Bork o bring him down

In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he

Senae rejeced Judge Bork because his views came o be well undersood and were considered

unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ

hey have been on a hun or villains ever since

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BIDEN RULES

They have atacked he press as in a recen inemperae speech by a conservaive Federal judge

bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu

mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae

or exercising is consiuional duies o conduc i

Bu i does no sop here Mr Presiden

A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public

o he wisdom o is agenda in anger abou he confirmaion process as well

The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive

Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who

hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more

conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul

such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae

The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was

a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr

Presiden jus as he righ reuses o accep he realiy o a Bork deea

Bork was deeaed because his views o wha he hough America should become were differen han

hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a

whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order

o winesses

So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological

advocaes o compeing social visions--advocaes who have no been able o persuade he generally

moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme

In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and

he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o

omen a grea social and culural war in which one or he oher will prevail

The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness

and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in

he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned

increasingly cuting responses rom he righ

The Thomas nominaion included a level o personal biterness ha may be ypical o our modern

poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion

process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he

Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings

were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran

elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen

o inimidae--and hey so saed--inimidae our review o he nominaion

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BIDEN RULES

I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in

he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process

Many o he same voices who have criicized he commitee or no going hard enough afer allegaions

ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or

was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal

wrong-doing insead o he real issues

We canno have i boh ways

I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over

public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same

is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir

jurisprudenial views i is debased when we plow hrough heir privae lives or dir

As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters

raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology

because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my

children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked

marijuana or anyhing else

Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge

Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he

commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he

numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue

Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his

video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has

his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge

Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he

cause o he end o his firs marriage

Each ime he airing o hese charges enraged Republican allies o hese nominees who considered

he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my

direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more

and more rusraed wih he resuls

This was anoher ension which came o a head during he Thomas nominaion and which exploded

when Proessor Hillrsquos charges were made public

To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing

wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose

ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-

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BIDEN RULES

based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has

received rom boh liberal and conservaive ideologues

A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been

desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics

and our naional dialog on public affairs

Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea

change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced

differenly han he preceding ones The pressures and ensions on he exising process--which

exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo

nominaion--even i i was desirable--a pracical impossibiliy

THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS

Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion

processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely

Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years

The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm

our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black

by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o

Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury

Overall while only one in our Supreme Cour nominaions has been he subjec o significan

opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial

elecion years

In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis

D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he

nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished

candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19

Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well

known by all who ollow his

Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process

he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o

such poliicizaion can undermine confidence in he confirmaion process

Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly

srong when he vacancy occurs in he summer or all o ha elecion season

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BIDEN RULES

Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season

such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been

graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier

In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming

which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe

Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae

Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were

nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus

confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion

o Jusice Samuel Miller in 1862

Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour

vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has

he Senae confirmed a nominee or hese vacancies beore he November elecion

In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a

nominaion unil afer he elecion was held

In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances

Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions

Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his

unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common

sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he

need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o

biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha

he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are

remoe a bes

O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo

more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America

We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush

nominaions o dae One can only imagine ha role becoming overarching i a choice were made his

year assuming a Jusice announced omorrow ha he or she was sepping down

Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur

jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion

mees a process ha is already in doub in he minds o many will become disrused by all Senae

consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o

he Senae isel

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BIDEN RULES

Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i

will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom

boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns

omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should

consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil

afer he November elecion is compleed

The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy

ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way

o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary

Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer

he poliical campaign season is over

I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns

we will have seen in modern imes

I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i

was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be

permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in

he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic

conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion

mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral

o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion

Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as

I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he

Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and

he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is

nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks

In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain

Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise

beween he branches would no be sofened bu raher he prospecs or such compromise would be

naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process

migh be changed in he nex adminisraion wheher i is a Democra or a Republican

I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive

social agenda ha he Congress and he public have rejeced In his way all he paricipans in he

process can be clear well in advance o how I inend o approach any uure nominaions

Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he

nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o

be chairman in he nex adminisraion

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BIDEN RULES

I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed

by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and

he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all

hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold

hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and

oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are

being sough

There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o

reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose

righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and

personal libery--and I am no jus alking abou aborion

Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he

proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery

imperiling laws concerned wih he environmen worker saey zoning and consumer proecion

And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes

o radically aler he separaion o powers o move more power in our hree branches o Governmen

divided Governmen separaed Governmen o move more power o he execuive branch imperiling

he biparisan independen regulaory agencies and he modern regulaory Sae

As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese

philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh

paries These are legiimae issues o debae Those who hold he view ha we should change hese

hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have

hem debaed beore he American people Bu his debae has been hwared by exremiss in boh

paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen

possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he

will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and

hereby remake our laws in his direcion

In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he

selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process

as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process

Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common

pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical

branches hen I shall oppose his uure nominees immediaely upon heir nominaion

This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising

any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so

I will no lend he power ha I have in his process o suppor he confirmaion o his selecion

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BIDEN RULES

As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more

Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he

phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion

o our views in his process While his posiion may seem conenious I believe i is nohing more han a

jusified response o he poliicizing o he nominaion process

To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses

He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences

beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course

no one has been surprised or ouraged when Democras like mysel have responded by rejecing he

Presidenrsquos budge ourigh

I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec

he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when

he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he

consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm

I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he

American people conclude ha he majoriy o desks should be moved on ha side o he aisle here

should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead

o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George

Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided

Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his

Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden

who is atemping o remake he Cour in a way wih which we disagree

As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding

Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha

since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep

compromise candidaes rom a conservaive adminisraion They would argue ha he only people we

should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o

come rom a conservaive Republican Presiden

Bu I believe ha so long as he public coninues o spli is confidence beween he branches

compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand

by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his

selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and

Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ

Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a

dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991

Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge

Bork have been so misremembered ha observers have compleely overlooked one grea eaure o

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BIDEN RULES

hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he

conemporary nominaion and confirmaion process and debae should be concluded and conduced

Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced

my opposiion o his confirmaion and several oher members o he commitee did he same Wha

ensued was I hink an educaional and enlighening summer

I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise

The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos

philosophy a group o respecive consulans o he commitee issued a response o his Whie House

paper and he adminisraion pu ou a response o ha response

While here were excesses in his debae as I menioned earlier by and large i was an exchange o

views and ideas beween wo major consiuional players in his conroversy he Presiden and he

Senae which he Naion could observe and hen evaluae

The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who

announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers

accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae

because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our

negaive consequences or he conormaion process

Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o

rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he

process when he hearings do no mee his arificial sandard o a rial

Confirmaion hearings are no rials We are no a cour we are a legislaive body They are

congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no

a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou

values and philosophy

We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane

debaes over which way he presumpion goes in he confirmaion process over wha he sandard

o review is over which side has he burden o proo all o hese erms and ideas are inep or our

decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on

consiuional amendmens

We do no apply a rial myhology in hose circumsances Mr Presiden

Second a second uninended and unorunae consequence o he criicism o early opposiion based

on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors

ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres

groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior

o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr

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BIDEN RULES

Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard

in he debae They shaped he debae Mr Presiden

Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee

hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam

prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he

wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press

releases and shou loudly pas one anoher

This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as

many summer news sories abou how ineres groups were lining upon he nominaion han here were

abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period

has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse

race Is he nominee up is he nominee down oday And discussions among spin docors insiders and

pundis abou wha he chances are

The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or

Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy

or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and

openly beore he hearing process begins

Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer

and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he

hearings ge underway o sand on he floor and say I do no know where he nominee sands on such

and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is

o concern o he individual Member begin he debae on he issues because when we do no we have

learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs

o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon

and who work in Washingon

So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups

ideological ringes o define he debae and dicaing he acics

Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he

prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing

suppor or a nominee

I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says

I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous

how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK

o be or a nominee beore he hearing begins bu no o be agains he nominee

In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing

sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me

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No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am

no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or

Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as

hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single

Senaor spoke in opposiion

In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over

he confirmaion debae in he hands o ineres groups insead o eleced officials

Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha

a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo

significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee

Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-

-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha

we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and

he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing

process began

In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how

hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i

a nominee meris a sea on our Supreme Cour

Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough

canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour

Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead

o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should

base heir deerminaion abou a nominee on his or her record o service wriings and speeches

background collecion and invesigaions a review o he nomineersquos experience in credenials and

he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings

no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha

nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings

can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof

conclusions bu hey canno be he enire process isel as hey have come o be viewed

Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable

improvemen on he confirmaion process Having urged a lessening in he significance o he hearings

I noneheless wan o sugges some changes or his par o he process as well And here in his hird

area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk

o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is

Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked

ha quesion 100 imes himsel Why do you no make he nominee answer he quesions

As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee