(Editor's Note: The following is a letter from Charles E. Schumer regarding the Supreme Court vacancy.)
The Honorable George W. Bush
The White House
1600 Pennsylvania Ave, NW
Washington, DC 20500
Dear Mr. President:
The Constitution dictates that federal judges be nominated by the President with the advice and consent of the Senate. I write to begin the process of fulfilling that Constitutional mandate.
In recent history, Presidents have announced their intention to nominate candidates to fill Supreme Court vacancies shortly after the positions have become available. The short time between the creation of a Supreme Court vacancy and the announcement of a potential replacement leaves little time for Senators to fulfill their constitutional duties to advise the President on whom to nominate.
Recent press reports have indicated that the White House is actively vetting potential nominees in preparation for Chief Justice Rehnquist's or any other Supreme Court justice's retirement. Because it appears you are actively engaged in this process and because I hold so important my constitutional obligation to advise you on these matters, I write to offer my input at this stage.
I start by encouraging you to use the same principles that guide me in evaluating judicial nominees. I consider three criteria: excellence, diversity, and moderation. I am confident that excellence will be a primary consideration for you because I know we agree that judges should be among the best lawyers the bar has to offer. I also know that you will consider the importance of diversity, as you have especially in working with me to put judges on the bench in New York.
When it comes to moderation, I am disappointed that we diverge with increasing frequency. I do not want judges who are too far Left or too far Right, because I believe judges who come to the bench with extreme ideologies are likely to make law, not interpret it. You, more than any other President in history, have chosen judges through an ideological prism. The White House's reliance on ideology when it has come to selecting lower court nominees has led to conflict that has frustrated both of us. If you were to select a mainstream nominee, you would do the process, the Judiciary, and the nation a real service.
I would add a fourth consideration: the willingness to answer questions forthrightly. For the Senate to perform its constitutional role properly, we must have answers to appropriate questions. Several of your nominees have refused to answer questions that legal ethicists have said are clearly appropriate. The same questions were asked by Republican Senators and answered by Democratic nominees when President Clinton was in office, and the same questions have been answered by several of your own nominees. Clearly, there is nothing inappropriate about a nominee discussing his or her views on already decided Supreme Court cases, on the First Amendment, the Second Amendment, the Fourth Amendment, the Eleventh Amendment, the Fourteenth Amendment, the right to privacy, the Commerce Clause, the Spending Clause, or any of the other pressing constitutional issues of the day.
As you know, I have voted for well over 90% of the judges you have nominated, most of them Republicans, most of them conservatives (but mainstream conservatives), and many if not most of them pro-life. I have no litmus test when it comes to what a nominee believes, but if a nominee refuses to answer my fair and reasonable questions and I am unpersuaded [sic] that the nominee will preserve balance on the court to which he or she is nominated, I am compelled to vote no.
Having outlined the criteria I would hope you would consider, I want to offer the names of five potential Supreme Court nominees for your consideration. There is a rich tradition of Senators offering specific advice to Presidents on Supreme Court nominations. Most recently, when President Clinton was considering judicial nominees, he received advice from Senator Hatch.
According to Senator Hatch in his book, Square Peg, he advised President Clinton to consider nominating both Justice Ginsburg and Justice Breyer to the Supreme Court. He believed that both would win easy Senate confirmation and, while left of center, were "highly honest and capable jurists," and "far better than the other likely candidates from a liberal Democratic administration." My advice is offered in the same manner and with the goal of helping you identify a nominee who could win 100 Senators' votes, not just 51.
While there are scores of Democrats whom I would hope you would consider, I am offering only individuals who either are Republicans or have previously been nominated by Republican Presidents. The candidates I would advise you to consider are:
The Honorable Arlen Specter, Republican Senator from Pennsylvania.
The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.
The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.
The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.
The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated by President Ronald Reagan.
All of these individuals appear to be legally excellent, ideologically moderate, and several of them would add diversity to the Court. All of them have a history of bipartisan support, are within the mainstream, and have demonstrated a commitment to the rule of law. While I would need to do additional research on them and question them personally before announcing my unqualified support, my initial review of their records is promising.
This is far from an exhaustive list and I appreciate that you may have other individuals in mind should a vacancy arise. I would welcome the opportunity to evaluate any candidates you are considering and provide input before any nomination is made, consistent with the Constitution's mandate that the Senate advise the President on judicial nominations.
My profound hope is that, should there be a Supreme Court vacancy this summer, you will nominate a candidate who will unite us, not divide us. I am confident that by working together we can achieve that goal. I look forward to hearing from you soon.
Charles E. Schumer
United States Senator