Over the last several weeks, as Senator Hatch has announced, we have been working to reach an understanding on how this Committee will handle nominations. A number of procedural and substantive issues have been raised in these regards for both Executive Branch and Judicial Branch nominations.

We have sought to work out arrangements and understandings so that all Members of the Committee would be on the same page, know what our rules are, know what our practices and procedures will be, and understand how this Committee will approach our important responsibilities with respect to nominations.

Over the last several weeks, along with the other Members of the Judiciary Committee, I have been meeting with Senator Hatch to try to understand whether the ground rules under which he has conducted his chairmanship will stay in place or be altered. I regret to say that at this time I do not have assurance that the ground rules– the policy and practices by which we have been operating with respect to nominations– will stay the same. Indeed, I fear that subtle and not so subtle changes are being made.

With respect to judicial nominations, we have already seen changes made in the process at the other end of Pennsylvania Avenue. That is President Bush’s right. He can consult with whomever he wishes before making his selections. I would have hoped that he would have built upon the longstanding and traditional practices that had served the country well. I would have hoped that he might have continued the candid, prenomination peer review process developed by President Eisenhower and followed by the last nine Presidents, including President Nixon, President Ford, President Reagan and the first President Bush. But he has abandoned that process and decided to proceed in a more insular fashion. That is his choice.

Of course his new procedures will impact the work of this Committee. To the extent we do not have a full understanding of how his selection process works, of the criteria being used, and of the role of home state Senators, those Senators and Members of this Committee will be required to be more active, be more involved, be more thorough in our evaluation of those nominees. That is the task we have been facing ever since the President unilaterally decided to change longstanding practices for vetting judicial nominations.

It is with that change as the backdrop that we are concerned with the suggestion by the Chairman that he would also be changing the practices that he has been following over the last several years. The prospect that partisan rule changes are being made at both ends of Pennsylvania Avenue to change the way we proceed has understandably raised serious concerns. Many of those changes to the role of home state Senators in the process-- the type and extent of consultation, the disregarding of longstanding bipartisan procedures, the ways in which this Committee will work with home state Senators-- seem to be directed at minimizing the role any check or balance in this process.

The prospect of wholesale changes raised concerns about double standards and about Democratic Senators serving with a Republican President being treated differently than Republican Senators have been treated during the Democratic Administration. The Senate Democrats have not agreed to any such changes. We still hold out hope that the new President will work with us and consult with us on nominations in our home States.

We feel strongly that this prospect is enhanced by this Committee’s continuing to accord the same deference to home state Senators that has traditionally been shown and that was emphatically provided over the last 6 years.

I have been trying to find ways to move forward, to work with the Chairman and the White House to avoid pitfalls and disagreements. I am trying to get the White House and Senate Republicans to understand that 50 Democratic Senators are also relevant to the Senate’s constitutional authority to provide advice and consent. When article II, section 2 of the Constitution provides that the President "shall nominate, and with the advice and consent of the Senate, shall appoint" federal judges and Justices on the United States Supreme Court, the Constitution is not, by its terms, limited to only Republican Senators.

Over the past three months I have met twice with the White House Counsel and tried to suggest ways to avoid disputes. I have counseled cooperation. Together with every Democrat on this Committee we wrote the White House Counsel to suggest ways to consult effectively with home state Senators. I can report that he has responded by thanking us and providing some assurance that the White House will adopt our suggestions and generally agrees with us. I hope that we are building a foundation and shared understandings on which we will be able to make progress together. Just as Senator Hatch and the Republican Members of this Committee has looked first to the home state Senators for judicial nominations, so, too, we will be very interested in the views of our colleagues.

That is what the "blue slip" is about. The Republican Leader Senator Lott was asked about this on Monday. Senator Lott said: "There has been this blue slip procedure in the past, where, you know, in effect you can return it to say that you agree with a nomination from your State or withhold it if you don’t. . . . I’m sure that , you know, the traditional consideration will be given to Democratic input." He later noted in answer to a question about whether the blue slip practices should now change, that he would want to talk to Senator Hatch but that he "presume[d] that there will be a process similar to the one that has been in place for the last few years." That is what Democrats on this Committee and throughout the Senate are seeking, reassurance that the same rules and practices are going to be applied.

It is a longstanding practice of the Committee for it to solicit and be guided by the views of home state Senators. This Committee’s practice, including its express practice without exception over the Chairmanship of Senator Hatch of not proceeding with action on a nominee without the return by both home State Senators of their blue slips also have had the effect of encouraging the White House to consult with home state Senators in advance.

Republican Senators during the last Administration were never shy about asserting their leverage in this regard with respect to President Clinton’s nominees. Indeed, they succeeding in increasing the role of home state Senators with respect to Court of Appeals nominees.

With regard to the Bush Administration, I was interested to see both the Vice President Cheney and the President’s top political advisor, Mr. Rove, respond to questions about these matters last Sunday.

The Vice President noted: "We’ve got a 50/50 Senate; it’s a very delicate balancing act there and we try to be very careful in terms of how we deal with my colleagues, if you will, since I’m paid by the Senate on these matters. But I’m sure we’ll get it sorted out."

Mr. Rove actually brought up the subject of the blue slip in response to a question from Tim Russert about whether home state Senators would be consulted about potential nominees to the federal bench. Mr. Rove observed: "We’ll consult– I think what you’re really asking about is whether or not we’re going to abide by the rules of the Senate with regard to blue-slipping, the ability of a senator to block a judge, and that’s up to the Senate to figure out. But we’ll be talking to – we’ll be seeking the advice and consent of the Senate on our judges."

Since these Administration representatives are looking to the Senate to work these matters out and since the Senate is looking to this Committee to work these matters out, that is precisely what we need to be doing.

We all need a firm and clear understanding of what the practices are going to be. Are Republicans now going to insist on changing the rules and practices that governed and protected their prerogatives with serving with a Democratic President? Are the views and positions of Democratic home state Senators somehow less worthy of respect and to become less significant before this Committee than the views of Republican home state Senators have been over the last 8 years?

I do not want to think that is what our Republican colleagues are intending. I want to work with them to provide the assurances that are needed so that we can move forward together. I want to be able to assure the many Democratic Senators who have come to me with tales of being cut out of the real process or being disrespected or of being politely shunted aside, that this Committee will respect them and their views and insist that they play their important and traditional role in this most important process.

Our position is simple: Chairman Hatch should continue using the same blue slips and the same practices he has been utilizing for the last several years.

All the nominations-related issues that we have been discussing are of fundamental importance. We have been saying to our Republican colleagues for several weeks that we want to resolve them. To date we have not even been able to agree on the facts, on what, in fact, has been the actual practice over the past few years.

I hear statements one minute that I find reassuring, indications that the policies, practices and ground rules are not being changed, but then I hear something else the next minute. The posture regarding what will happen seems to be unsettled, in flux, changing or unspecified. That is not reassuring.

We need to bring these matters to conclusion and reach a bipartisan consensus. We have been trying to do this before these procedural issues become even more complicated by the pendency of nominations.

Our concern is that if we do not resolve this matters now, at the outset, they will never be resolved. We will be distracted. Our friends across the aisle will never join with us in a bipartisan solution and things will drag on, lead to misunderstandings and ultimately to a crisis.

We feel strongly that the time to act is now at the outset of this session.

We need to rededicate ourselves to getting agreement on these fundamentals, embodying them in our procedures and practices.

We need a mutually shared understanding of how we will treat each other and how we will be proceeding.

Accordingly, I look forward to our continuing to work together in good faith and to reaching that elusive bipartisan consensus. We have resolved other organizational issues that challenged us at the outset of this Congress. From Senate Resolution 8 through the agreements that Senator Hatch and I were able to forge on sharing Committee resources, we have been able to reach understandings to facilitate the work of the equally divided Senate and our equally divided Committee. I know that we can resolve these fundamental concerns, as well, if we concentrate on them, work together and demonstrate the resolve to come to agreement.

I have tried to work with Senator Hatch and all Members of the Committee to resolve concerns about how nominations will be considered by the Committee. For example, as Senator Hatch has announced, Members of this Committee are discussing the Committee’s blue slip policy and whether the practices that Chairman Hatch has followed to honor the prerogatives and privileges of home state Senators in connection with nominees to the Federal Courts and for to serve as U.S. Attorneys and U.S. Marshals will continue in accordance with Senate tradition and the role accorded Republican Senators under a Democratic President and whether those same practices will continue to be followed to protect the role of Democratic Senators serving with a Republican President.

We have had some discussions but I regret that we have not reached a bipartisan consensus. These policies and practices are very important and need to be in place for this Committee to do its work effectively and efficiently.

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