I'm pleased you are having this hearing on the historic role played by the Senate and the President in judicial nominations.

At the founding of our nation, the idea was that the Senate could be a
sort of informal cabinet for the President, advising him regularly on a
host of matters. It soon became apparent that that hope was unrealistic.
When the Senate reached the point of confirming nominations from the
President, the Senate invited George Washington to join them for
consideration of the nominees, but Washington wisely declined, stating that
the Senate should feel free to accept or reject nominees without any
pressure from the President.

By tradition the President does seek the advice of Senators or ranking
House members for district judgeships. The constitution is being followed.

At the appellate level it is sometimes followed. Because I served on this committee I had conversations with the White House on a few of these
appointments. But at the most important level, the Supreme Court, it is
rarely followed today. We are a long way from a Supreme Court contest in
which President James Garfield wrote that a nomination he made "will settle
the question whether the President is the registering clerk of the Senate
or the Executive of the United States."

Two days after George W. Bush took the oath of the presidency, he met with six Democrats--Senator John Glenn, Carter press secretary Jody Powell,
Walter Mondale's chief of staff Richard Moe, former Congressman Bill Gray,
former Democratic National Committee chair Robert Strauss, and myself--on
how he could reach out to Democrats. I stressed that when it comes to
nominations for the U. S. Supreme Court he should take his time, consult
with members of this committee of both political parties, and with others,
because that legacy will live long after his presidency.

On the lower courts, it is important that you get the opinion of the
American Bar Association. Even with that screening, occasionally a
marginal nominee would appear before us, where I said to myself, "I hope
nothing too complicated comes before this judge." I stopped only two
nominations that I recall, one a nominee who made racially insensitive
remarks, and the other a nominee who refused to resign from a club which
discriminated, a practice I am pleased to say the committee now follows.

Beyond that, unless views expressed by a lower court nominee are extreme
or there is evident lack of ability or question about integrity, I believe
the nominee should be approved. Let me illustrate. When Clarence Thomas
came before this committee for chairmanship of the Equal Employment
Opportunities Commission, I voted against him because he did not believe in
the mission of the agency. When he came before us as a nominee for the
appellate court, I voted for him but said at the time if he should be
nominated to the U. S. Supreme Court I would probably vote against him
because of his philosophy. That I did.

On Supreme Court nominations, whatever is considered by the President
properly should be considered by the Senate. And while it is true that
sometimes nominees follow an unexpected pattern, in the large majority of
cases the background of the nominee is an accurate gauge of the future
decisions that Justice will make. In one of the worst decisions the
Supreme Court ever made, the Korematsu decision, approving President
Franklin Roosevelt's 1942 order to suddenly relocate 115,000 Japanese
Americans--not a one of whom had committed a crime--one of the three court
dissenters was a nominee of President Herbert Hoover and among the six in
the majority were Justices Hugo Black and William Douglas, usually
champions of civil liberties. And one of the few people within the
administration to speak out against the President's actions was J. Edgar
Hoover, later not so sensitive to our basic liberties. But that unexpected
pattern is unusual.

The best recent example of how a nomination should be handled was
President Gerald Ford's nomination of John Paul Stevens. The President
asked Attorney General Ed Levi to scour the landscape for a quality
justice. Senators were consulted as were many others. The president did
not act hastily. No President should. Nor should the Senate. While it is
not ideal, the Supreme Court can operate with eight members, and whatever
problems that presents it is much better than approving someone like
Woodrow Wilson's appointment of Justice James McReynolds, the clear winner
of the award as the worst justice to serve on that high body.

During my twelve years on the Senate Judiciary Committee, no President
ever talked to me about a possible nominee prior to the nomination. A
President should do that. That's what the Constitution calls for. The
President does not need to follow the advice of the Senate, nor the Senate
of the President. The Senate favored naming Aaron Burr as Ambassador to
France and sent James Monroe and James Madison to talk to the President
about it. George Washington refused saying he had "made it an invariable
rule never to suggest to a high and responsible office a man whose
integrity" he questioned. The President was right, the Senate wrong.

Three suggestions:

1. Again, you should take into consideration philosophy for a Supreme
Court nominee. When Earl Butz came before the Senate as the nominee for
Secretary of Agriculture, Senator Hubert Humphrey said to him: "I am
worried about your economic philosophy. . . .Your bonds and stocks are to
your credit. . . .You have earned everything that you have. You can put
all that in escrow, but I don't think you can put your philosophy into
escrow." If that is a consideration for a Secretary of Agriculture, how
infinitely more true is it of a life-time member of the United States
Supreme Court.

2. Practical political experience should be at least a minor
consideration. Linda Greenhouse recently had an article in the New York
Times in which she mentioned that only one member of the Supreme Court,
Justice Sandra Day O'Connor, has ever held elective office, having served
in the state legislature. Greater elected office experience would be of
help to this court.

3. A broad look for nominees of the Supreme Court should include
non-lawyers and members of the opposite party. Justice Hugo Black favored
having one or two members of the Court who are not lawyers. Someone who
became a Supreme Court scholar like Irving Dilliard of the St. Louis
Post-Dispatch would have made a superb Supreme Court justice. Let me add
that at the age of 72 I am not talking about myself. As to political
party, in the last century, Presidents Taft, Wilson, Harding, Hoover, FDR,
Truman, Eisenhower and Nixon all nominated at least one justice of the
other party.

One final footnote. In the history of the Senate, it has rejected
one-fifth of the nominees to the Supreme Court. In the nineteenth century
it rejected one-fourth--reason enough for the President and the Senate to
work together.