Let the Senate Advise

By Edward M. Kennedy
Monday, July 4, 2005

Sandra Day O'Connor's retirement gives President Bush, elected by a divided nation that has become even more divided, a unique opportunity to unite us by choosing for the Supreme Court someone who can win support from a broad bipartisan majority in the Senate and whom the vast majority of Americans will be proud of.

Justice O'Connor's appointment to the high court is a useful model. Of the 20 Supreme Court nominations I have seen, hers was one of the most impressive. She was a Republican through and through who served the state of Arizona with distinction as assistant attorney general, state senator, trial judge and appellate judge. She was nominated by a Republican president, Ronald Reagan, and was opposed by activists who were even further to the right than he was, but Reagan stood by her. I'm sure Reagan understood the importance, for the good of the country, of avoiding a divisive battle over the first woman nominated for the Supreme Court.

When her nomination reached the Senate floor, she was confirmed unanimously. For 24 years she has demonstrated that the Senate's confidence in her was eminently justified. She has faithfully applied her own extraordinary life experiences, her broad knowledge of the law and her dedication to the Constitution to complex issues. She had no agenda except being the best possible justice.

If Bush emulates Reagan, the appointment of a replacement for O'Connor can be an expeditious, cooperative and unifying process. The president can choose a nominee whom the Senate will strongly support, as the framers of the Constitution envisioned. Those wise men, meeting in Philadelphia in 1787, well remembered the events of 1776 that we celebrate today. They remembered what it was to live as subjects under a tyrannical monarch. They resolved that absolute power would never reside in any of our leaders, and they constructed the careful system of checks and balances that has prevented it ever since.

They returned time and time again at the Constitutional Convention to the question of who should appoint judges. Five times they voted not to give the president any role in such appointments, but to give that power solely to the Senate. There were many other suggestions. Benjamin Franklin thought the Scottish system of letting the lawyers choose judges might work; he said the best candidate was usually chosen, because other lawyers wanted to eliminate their strongest competitor. Our forefathers finally compromised and authorized the president to make appointments "with the advice and consent of the Senate."

The genius of their plan was obvious. If both the president and the Senate must agree on an appointment, there is a strong incentive to select people who can obtain a consensus in the nation and in the Senate. They spoke of the appointment power as a "joint" power, and that's what it's been for 218 years. "Joint" means cooperation and consultation and consensus. It means picking from a list of mainstream lawyers and judges who have demonstrated that they are dedicated to the Constitution and the rights it guarantees. It means avoiding candidates who would come to the court with personal, partisan or ideological agendas. It means ignoring the advice of those who prefer that the president pick fights with the Senate instead of picking judges with the Senate. It means taking seriously the "advice" part of "advice and consent" by sharing the names of prospective nominees with the leadership of both parties in the Senate, the Judiciary Committee, and other senators who will fairly reflect the balance of views in the Senate and the country.

Confirmation proceedings should not be partisan exercises or occasions for party discipline. The president must not expect that if he chooses the route of confrontation and conflict, senators in his party will march to the battle stations with him and support his nominee. At least three times while I have been in the Senate, a president who did so found that members of his own party would not place party above country and joined in rejecting a divisive nominee. That's because they understood then what the president and all of us must remember today -- that the Supreme Court, as the last line of defense for "liberty and justice for all" should always be above partisan politics.

The president should reject the pressure of the extreme factions of his party that want litmus tests for his nominee. This process shouldn't just be about whether the next justice would help roll back women's rights by overturning Roe v. Wade , the law of the land. It should be about something much more basic: protecting our core constitutional values for generations to come, the freedoms that we've fought for, bled for and died for. Because of Sandra Day O'Connor, the disabled are guaranteed access to our public courts. Teachers can't be fired for opposing discrimination against girls in our public schools. Patients can get a second opinion when an HMO tries to deny them care. Our water is cleaner and citizens can stop polluters who dump toxins into our waterways.

I haven't always agreed with O'Connor. I didn't agree earlier this year that we should continue to execute juveniles. And I certainly didn't agree with her in Bush v. Gore .

But she was fair and tried to interpret the law. Unfortunately, many of those whom President Bush has nominated to the lower courts in the past four years have wanted to remake the law to suit their own ideologies. I hope the president will consult with the Senate and select a consensus nominee as dedicated to the Constitution as Sandra Day O'Connor.

If the president consults with senators and listens to their advice, as the framers wanted presidents to do, we can have a nominee our children and grandchildren can all be proud of.

The writer is a Democratic senator from Massachusetts.

© 2005 The Washington Post Company