Friday, October 03, 2008

Senator Biden's Standard: No Ideological Test


Senator Biden’s Standard: No Ideological Test

 As Senator Biden explained in an April 19, 1994 floor speech, the Senate should consider three factors when deciding whether to confirm a nominee to a lower court. If candidates meet the three criteria, “they should be given an opportunity to fulfill [sic] the seat for which they have been named.”

 Nominees must have “the capacity, competence, and temperament to be on the court of appeals or a trial court.”

 Second, nominees must be “of good character” and “free of conflict of interest.”

 Third, nominees must “faithfully apply the Constitution and the precedents of the Supreme Court.”

 Senator Biden reiterated his standard on May 23, 2002, when he voted to favorably recommend to the full Senate the nomination of Judge D. Brooks Smith (a Third Circuit nominee). Senator Biden indicated that he was supporting Judge Smith because of his commitment to applying U.S. Supreme Court precedent.

 “If I had believed that the lower court nominee would abide by the precedents of the Supreme Court and their circuit, even though I knew I disagreed with them philosophically, I would vote for them.”

 “I find I would gave to apply a double standard, and I would like to vote against this fellow. . . . But unless I begin to change the standard, which it is sort of late in the game to do, I don’t have a sufficient reason to vote against Judge Smith, in large part because of what I do and what we all do on every nominee.”

 Senator Biden consistently has rejected the use of ideological litmus tests for lower-court nominees.

 “[A key consideration is] whether the nominee lacks the requisite temperament for appointment to the important life-tenured position of the appeals court.” [Nov. 7, 1985]

 “Candor and forthrightness are measures of a nominee’s temperament which is an important prerequisite for a judge. . . . For a nominee, testifying under oath, before a Senate committee has an obligation, not unlike the obligation of a judge writing a judicial opinion, to present fully all the facts regardless of whether they are perceived to be favorable.” [Nov. 7, 1985]

 “I believe judgment and temperament to be essential qualities in evaluating a nominee for [the] position [of a federal judge].” [Mar. 18, 1986]

 “It is imperative [not to] compromise the public perception that judges and courts are a forum for the fair, unbiased, and impartial adjudication of disputes.” [Mar. 18, 1986]

 “[Whether nominees] lack the judicial temperament to be placed upon the federal bench for the rest of his life, making judgments that affect a significant portion of this country’s population.” [Mar. 18, 1986]

 “While most of the 270 [Reagan judicial nominees whom I supported] share a clearly conservative judicial philosophy, closely in tune with that held by President Reagan, they have been approved by the U.S. Senate, Democrats and Republicans alike . . . by virtue of their professional qualifications. I disagree, quite frankly, with the judicial philosophy of this President. Were I asked to advise the next President of the United States, I would not be telling him or her that he or she should be sending up nominees like the ones that have come before us in the last 5 years. But notwithstanding the fact, we Democrats…voted to bring these judges up and confirm them. I disagree with the philosophy of Frank Easterbrook and Richard Posner. But I voted to confirm both of these men to the Seventh Circuit. I hold different views from Judge Bork and Judge Scalia, who was recently nominated to be on the Supreme Court. I would not, had I the option, pick either of these gentlemen to be on the Supreme Court or on the courts on which they serve. But I voted to confirm each of them to the District of Columbia Circuit Court.” [June 24, 1986]

 “I [have supported many of President Reagan’s conservative judicial nominees] because they have possessed the earmarks of excellence, intellectual capability. high achievement, and demonstrated excellence in the law and the requisite judicial temperament.” [June 24, 1986]

 “[Judicial confirmation] is not about right to life, it is not about conservative or liberal, it is not about Democrat or Republican. It is about intellectual and professional competence to serve as a member of the third coequal branch of the Government.” [June 24, 1986]

 “The court of appeals is a court of last resort for the overwhelming majority of litigants. Consequently, the circuit court of appeals is too vital to our structure of constitutional Government to be burdened by the appointment of persons whose qualifications are subject to serious doubt.” [June 24, 1986]

 “[T]he fact that I may disagree with the nominee about the correct outcome of one or another matter within the legitimate parameters of debate is not enough, by itself, to lead this Senator to oppose a nomination.” [Sept. 17, 1986]

 “Any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as [1] they are in a position where they are in the general mainstream of American political life, and [2] they have not committed crimes of moral turpitude, and [3] have not, in fact, acted in a way that would shed a negative light on the court.” [Mar. 19, 1997]

 “I respectfully suggest that it is a rare — it is a rare —district court nominee by a Republican President or a Democratic President who, if you believe they are honest and have integrity, have any reason to vote against them. I voted for Judge Bork, for example, on the circuit court, because Judge Bork I believed to be an honest and decent man, a brilliant constitutional scholar with whom I disagreed, but who stood there and had to, as a circuit court judge, swear to uphold the law of the land, which also meant follow Supreme Court decisions.” [Mar. 19, 1997]

 “I urge my colleagues to reject this ideological test for nominees for the lower court while again emphasizing that I do not criticize and I would suggest that it is appropriate and necessary for Senators to apply such an ideological test for the Supreme Court.” [Apr. 14, 1994]

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