feinstein.senate.gov/05speeches/cr-judicial-nom0510.htm
pdf version Watch this speech Mrs FEINSTEIN: Mr President, I speak today as a member of the Judiciar y Committee for the past 12 years. In this capacity, I have worked with members from both sides of the aisle, and on nominations from both Dem ocratic and Republican Presidents. In all, I have voted to confirm 573 judges, and voted No on the Senate floor on 5, and voted against clot ure on 11. I evaluate each candidate on a case by case basis and thoroughly examine their writings, opinions, statements, temperament, and character. The fact that federal judges are lifetime appointments weighs heavily. They do not come and go with an Administration, as do Cabinet appointments; rather, they cannot be removed from the bench except in extremely rare circumstances. In fact, in our governments over 200 year history only 11 federal judges have been impeached, and of those only two since 193 6 Over the years we have had heated debates and strong disagreements over judicial nominees. However, that debate is what ensures the Senate conf irms the best qualified candidates. I am deeply troubled when our legit imate differences over an individuals qualifications to be given a lif etime appointment to the federal bench become reduced to inflammatory r hetoric. I am even more concerned when rhetoric turns into open discuss ions about breaking Senate rules and turning the Senate into a body whe re might makes right. I am here today because some members on the other side of the aisle have decided that despite a Constitution that is renowned world-wide and us ed as a model for emerging democracies; despite a confirmation rate of 95% of President Bushs judicial nominees; and despite the other pressi ng priorities that the American people want us to address, that the tim e has come to unravel our governments fundamental principle of checks and balances. The majority has decided the time has come to unravel the Senates tradi tional role of debate; and that the time has come to break the rules an d discard Senate precedent. It is important to remember tha t once done, once broken, it will be hard to limit and hard to reverse. In fact, just last month Senator Coleman stated on CNN, The president h as a right to make appointments. That's true for any kind of appointee, whet her it's undersecretary of state or a judge. First the rules would be broken with regard to judicial nominees, then it is executive branch nominees, then it is legislation, and then the Senate has no rules at all and simply becomes a replication of the House of Representatives. Every Thursday morning, I have a constituent breakfast, and at that brea kfast I describe the difference between the House and Senate based on s omething George Washington once said, that the House moves rapidly, is controlled totally by the party in power, and is akin to a cup of coffe e You drink your coffee out of the cup, but if it is too hot, you pour it into the saucer to cool it. And that is the Senate, the greatest so -called deliberative body on Earth, a place that fosters debate, often unlimited, and is basically based on the fact that no legislation is be tter than bad legislation. So the Senate by design was created to be a very different house than the House of Representatives. The strategy of a nuclear option will turn the Senate into a body that c ould have its rules broken or changed at any time by a majority of Sena tors unhappy with any position taken by the minority. As I said, this i s not the Senate envisioned by our Founding Fathers, and it is not the Senate in which I have been proud to serve for the past 12 years. I think it is important to take a look at history, as others have done, to understand the context of where this debate is rooted. The Founding Fathers and early Pilgrims were escaping a tyrannical government where the average man, the common man, often did not have a voice and was oft en left without any say in its laws that governed him and his family. I n response, these men specifically embedded language in the Constitutio n to provide checks and balances so that, inherent in our governments design, would be conflict and compromise, and it is precisely these che cks and balances that have served to guarantee our freedoms for over 20 0 years. When you read the Federalist papers, discussions at the Constitutional c onvention, and about the experience of Americas first President, it is clear the Senate was never intended to simply be a rubberstamp. While it is often difficult to discern the original intent of a constitu tional provision, the records of the Convention address the role of the Senate in the selection of federal judges with unusual clarity. Both the text of the Appointments Clause of the Constitution and the deb ates over its adoption strongly suggest that the Senate was expected to play an active and independent role in determining who should sit on t he Nations judiciary. Throughout its deliberations, the Convention contemplated that the Natio nal Legislature in some form or another would play a substantial role i n the selection of Federal judges. As a matter of fact, on May 29, 1787 , the Convention began its work on the Constitution by taking up the Vi rginia plan, which provided: That a National Judiciary be established.. Under this plan, the President was to have no role at all. One week late r, James Madison modified the proposal so that the power of appointing judges would be given exclusively to the Senate rather than to the legi slature as a whole. Then less than 2 weeks before the Convention's work was done, for the fi rst time the committee's draft provided that the President should have a role in the selection of judges. However, giving the President the power to nominate judges was not seen as ousting the Senate from a central role. Governor Morris of Pennsylva nia paraphrased the new provision as one giving the Senate the power to appoint judges nominated to them by the President. In other words, it was considered the Senate was the nomination body and the President sim ply recommended judges to the Senate. The Convention, having repeatedly and decisively rejected the idea that the President should have the exclusive power to select judges, could n ot possibly have intended to reduce the Senate to a rubber stamp, but r ather it created a strong Senate role to protect the independence of th e judiciary. In fact, Alexander Hamilton, considered the strongest defe nder of Presidential power, emphasized that the President would be requ ired to have his choice for the bench submitted to an independent body for debate, a decision, and a vote, not simply an affirmation. He clari fied the necessary involvement of the Senate in Federalist No. Here is the emergence of a check, a balance, a leveling impact on the po wer of appointment, which is not to be unbridled. In 1776, John Adams also wrote on the specific need for an independent j udiciary and checks and balances. He said: The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an u pright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and indep endent upon both, that so it may be a check upon both, as both should b e checked upon that...
they should not be dependent upon any man or body o f men. So it is clear, when examining the creation of our Constitution, that th e Federal judiciary was specifically designed to be an independent, non partisan third branch, and the Senate was meant to play an active role in the selection process. In addition, the experience of President Washington in appointing judges illustrates that from the outset the Senate took an active role in eva luating judicial nominees. In 1795, President George Washington nominat ed John Rutledge to be Chief Justice. Soon after his nomination, Rutled ge assailed the newly negotiated and popular Jay Treaty with Britain. E ven as Rutledge functioned as Acting Chief Justice, the Senate debated his nomination for 5 months, and in December 1795 the body rejected him 14 to 10, illustrating fro...
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