FOR IMMEDIATE RELEASE September 4, 2001

WHO BEARS THE BURDEN OF PROOF: THE SENATE OR THE NOMINEE?

COURTS SUBCOMMITTEE HEARING EXAMINES WHETHER REQUIRING JUDICIAL NOMINEES TO PROVE THEIR MERIT FOR LIFETIME APPOINTMENTS WOULD RAISE THE QUALITY OF THE FEDERAL BENCH

The Senate's Administrative Oversight and the Courts Subcommittee, chaired by US Senator CHARLES E. SCHUMER, today held a hearing to examine a simple yet important question: On whose shoulders should the confirmation burden rest? When considering judicial nominations, should the Senate ask itself "Why shouldn't we confirm this nominee" or should the Senate ask the nominee "Why should we confirm you?" The former puts the burden of proof upon the Senators, requiring them to either rubberstamp the nominee or uncover evidence, often of a trivial nature, showing why the nominee is unfit for confirmation. The latter puts the burden of proof on the nominee, requiring the nominee to demonstrate - based on the nominee's experience, qualifications, background, judicial ideology, and writings, among other factors - why he or she merits a lifetime appointment to the federal bench. The difference is subtle, yet profound, impacting both the overall quality of the judiciary and the future of the advise and consent process.

"Given the stakes at hand, it makes sense that the burden should rest with the nominee," Schumer said in his opening statement. "We require parties who appear before a court to prove their case. It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same... The federal bench should be filled with the best and brightest legal talent. When the screening board is merely charged with asking itself, 'Why not this nominee?' we can never hope to achieve the level of excellence the Framers intended and the American people have every right to expect.

"When two co-equal branches of government are given balanced roles in a system, as is the case with judicial nominations and confirmations, the Senate cannot simply presume that the President's picks merit confirmation," Schumer continued.

Schumer made the following opening statement at today's hearing:

"Welcome to the second in a series of hearings the Subcommittee on Administrative Oversight and the Courts is holding to examine the judicial nomination and confirmation processes. Our first hearing examined the role of ideology in the Senate's consideration of judicial nominees. By the hearing's close, I think we showed that an open, honest and aboveboard consideration of a nominee's judicial ideology ultimately benefits the Senate and the nominee, by keeping the inquiry focused on issues of substance rather than falling prey to the type of "gotcha politics" that has unfortunately emerged over the past few decades.

"We also showed that openly considering judicial ideology benefits the judiciary itself by helping ensure that our courts remain balanced and moderate, and represent the views and beliefs held by the majority of the American people. Today, we have another opportunity to shed more light on the judicial confirmation process. In recent history, both Republican and Democratic presidents have nominated controversial candidates to the bench.

"The confirmation process for many of these candidates has been tarnished by allegations of unfair treatment of the nominees by both sides, Republicans and Democrats. It's time to clean up what has all too accurately been called the "Confirmation Mess." That's why we're holding these hearings: to look at what the process has become and talk about how to turn it into something that treats both the nominees and Senate with dignity and respect, and ensure that the federal bench receives the very best candidates our nation has to offer.

"Today, we take our next step toward that goal. We have invited a series of distinguished witnesses from across the political spectrum to come and discuss the Senate's role in judicial nominations and confirmations. During today's hearing, we will explore and hopefully answer one simple, yet important question: on whose shoulders should the confirmation burden rest? Should the Senate ask itself "Why shouldn't we confirm this nominee?" or should the Senate ask the nominee "Why should we confirm you?"

"The former puts the burden of proof upon the Senators, requiring them to either rubberstamp the nominee or uncover evidence, often in the vein of gotcha politics, showing why the nominee is unfit for confirmation. The latter puts the burden of proof on the nominee, requiring the nominee to demonstrate - based on his or her experience, qualifications, background, judicial ideology and writings, among other factors - why he or she merits a lifetime appointment to the federal bench.
The difference is subtle, yet profound, impacting both the overall quality of the judiciary and the future of the advise and consent process.

"As we are still in the early stages of the process of reviewing the President's judicial nominees, we should better understand the extent to which factors such as diversity of experience, the political climate of the day, and the ideological tilt -- if any -- of the court to which the nominee is being offered, matter to our evaluation of the question we are dealing with here today.

"As I so often learn, the best way to figure out what to do next is often by looking back at what the Framers did first. And when the Framers debated how to fill judgeships on the federal bench, they considered a wide range of possibilities. The options went from vesting all power in the Senate to giving the President unilateral authority to appoint judges.

"According to the records of the Constitutional Convention, some delegates were concerned that the President might use the appointment power to put only his friends and like-minded thinkers on the federal bench. So the Framers acted wisely. They chose a middle course that balanced power between the President and the Senate. The President was given the ability to nominate but the Senate was given roles of offering advice in nominations and deciding whether to consent to those nominations.

"In Federalist 77, Alexander Hamilton, a great New Yorker and a proponent of a powerful executive branch, lauded this balance of power. He noted that the very purpose of the Senate's role is to "restrain" the President as he exercises the nomination power. Hamilton foresaw an active Senate examination of judicial nominations, where blame would lay at the Senate's door if qualified nominees were rejected, but where credit would be given to the Senate when undeserving nominees were justifiably denied confirmation.

"What does that mean? To me, it seems clear that the Framers wanted the President to select candidates for the bench, but that they also wanted the Senate to actively deliberate whether those candidates are fit for the bench. And I know that several of my Republican colleagues, including the distinguished Minority Leader, Senator Lott, and my friend Jeff Sessions, the ranking member on this Subcommittee, have similarly made strong statements in favor of a very active Senate role in the confirmation process.

"Given the stakes at hand, it makes sense that the burden should rest with the nominee. We require parties who appear before a court to prove their case. It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same.

"Imagine a job interview where you walk in and it's up to the interviewer to either automatically hire you or find something in your past that disqualifies you. Provided you just sit there with your mouth shut, or, at the most, voicing meaningless platitudes, and as long as there's no major skeleton in your closet, you're a shoo-in for the job. Is that the best way to find the best person for the job? Of course not.

"Any company built that way would be filing for Chapter 11 in months. But here in the Senate, we call that the judicial confirmation process, and here in the Senate, the nominee gets the job for life.
Our system is on the verge of being broken and it needs fixing. The Founders, from Federalists like Hamilton to democrats like Madison and Jefferson would be shocked if they saw what was happening today.

"The federal bench should be filled with the best and brightest legal talent. When the screening board is merely charged with asking itself, "Why not this nominee?" we can never hope to achieve the level of excellence the Framers intended and the American people have every right to expect.

"When two co-equal branches of government are given balanced roles in a system, as is the case with judicial nominations and confirmations, the Senate cannot simply presume that the President's picks merit confirmation. A mistake here doesn't just last two, four, or six years, as it does with elected representatives; a mistake here lasts a lifetime.

"That's why it is our duty to ask every nominee "Why should we?" instead of just asking ourselves "Why not?" What does that mean for the President's nominees? It means that they can expect to be treated fairly, but questioned rigorously. It means they will be respected, but not rubber-stamped. It means they will not be ignored, but they also will not be rushed.

"Some of our witnesses today will help provide a historical context for placing the burden of proof on the nominee. Others will surely disagree. That's part of what makes these hearings interesting. Before I turn to our ranking member, Senator Sessions for his opening statement, I want to remind everyone that our third hearing, which will be held in the coming weeks, will examine the "New Federalism" and the recent trend in the federal courts of limiting Congress's power to pass laws that affect people's everyday lives in important ways.

"I also want to thank Senator Sessions for again helping to make this a fully bipartisan hearing -- just as our last hearing was. I look forward to continuing in this mode of productive bipartisanship. He and his staff helped us get this hearing scheduled in a short time frame and have been a real pleasure to work with."

The following individuals participated in today's hearing:

Senator Fred Thompson was elected to the Senate in 1994 in a special election and won re-election in 1996. He is currently the ranking Republican on the Government Affairs Committee and has dedicated much of his career in the Senate to overseeing the management of the federal government. Thompson is also a member of the Finance Committee and the Senate Select Committee on Intelligence. Prior to his election to the Senate, Thompson served as Special Counsel to both the Senate Select Committee on Intelligence and the Senate Committee on Foreign Relations, is the author of the Watergate memoir At That Point in Time, and has appeared in eighteen motion pictures .

Former Senator Paul Simon is currently a professor of public policy and journalism at Southern Illinois University in Carbondale, IL, where he heads the Public Policy Institute. Prior to leaving the US Senate, Simon ranked as Illinois' senior senator. During his Senate tenure, he served on the Budget, Labor and Human Resources, Judiciary, Indian Affairs, and Foreign Relations committees . Senator Simon holds over 54 honorary degrees and has written 19 books, his most recent being P.S. The Autobiography of Paul Simon, 1998; and How to Get into Politics - and Why (with Michael Dukakis), 2000.

Douglas W. Kmiec is the Dean of the Columbus School of Law at The Catholic University of America. Kmiec taught constitutional law for nearly two decades at Notre Dame and has held the Caruso Family Chair in Constitutional Law at Pepperdine University School of Law since 1999. During the 1980s, he was Assistant Attorney General in charge of the Office of Legal Counsel. At Catholic University, he also holds the title St. Thomas More Professor of Law.

Sandford Levinson is a Professor of Law at University of Texas. His recent articles include "The Canons of Constitutional Law" (Harvard Law Review, 1998). He is currently working (with Paul Brest, Akhil Amar, and J. M. Balkin) on the fourth edition of their popular casebook Processes of Constitutional Decisionmaking (Aspen, forthcoming). He has been Visiting Professor at Harvard Law School and NYU School of Law, and is a member of the American Law Institute.

Judith Resnik is the Arthur Liman Professor of Law at Yale Law School, where she teaches and writes about procedure, federal courts, feminist theory and large-scale litigation and directs the Arthur Liman Public Interest Program. She is a member of the American Law Institute and on the Board of Governors of the Society of American Law Teachers. In recognition of her achievements, she was awarded the Florence K. Murray Distinguished Service Award from the National Association of Women Judges and the ABA Margaret Brent Women Lawyers of Achievement Award. She received her J.D. from New York University School of Law in 1975 and her B.A. from Bryn Mawr College in 1972.

Ronald Rotunda is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois College of Law . He is a leading member of the Federalist Society . Rotunda joined the University of Illinois faculty 1974 after clerking for Judge Walter R. Mansfield of the United States Court of Appeals for the Second Circuit, practicing law in Washington, D.C., and serving as assistant majority counsel for the Watergate Committee. He has co-authored the most widely used course book on legal ethics, Problems and Materials on Professional Responsibility and on constitutional law, Modern Constitutional Law.

Mark Tushnet is the Carmack Waterhouse Professor of Constitutional Law and Associate Dean of Research at the Georgetown University Law Center. He received a J.D. and M.A. in history from Yale University in 1971. He clerked for Judge George Edwards and Justice Thurgood Marshall before beginning to teach at the University of Wisconsin Law School in 1973. In 1981 he moved to the Georgetown University Law Center. He has written nine books, including a two-volume work on the life of Justice Thurgood Marshall, and edited three others. He has received fellowships from the Rockefeller Humanities Program, the Woodrow Wilson International Center for Scholars, and the John Simon Guggenheim Memorial Foundation. He has been a visiting professor at the University of Texas, University of Southern California and University of Chicago law schools.