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President George W. Bush is setting the proper tone for filling the vacancy that Justice Sandra Day O’Connor’s resignation created by discussing it with Senate leaders in a meeting set for July 11. On the day she resigned, July 1, Bush described the procedures that he intends to employ in choosing her successor. Perhaps most important, he must promptly effectuate his vow to consult with the Senate in nominating and appointing a worthy replacement for O’Connor. Bush remarked that the nation deserves a new Supreme Court justice of whom the citizenry will be proud, as well as dignified selection and approval processes, which accord the nominee fair treatment and a fair hearing and vote. He pledged to nominate an individual who possesses great integrity, experience and intellect. Moreover, he vowed to implement effective procedures that respect the high office being filled and the solemn responsibilities that he and the Senate discharge. Bush promised that he would apply deliberate and comprehensive measures. He also pledged to commit the requisite time in scrutinizing the records compiled by a wide range of possible nominees. He observed that he instructed administration officials, in cooperation with the Justice Department, to assemble and suggest for his review potential candidates who meet high criteria for legal competence and judgment, and who would faithfully construe the Constitution and legislation. The president vowed: “I will continue to consult, as will my advisors, with members of the United States Senate.” A week ago, he reiterated that he would continue reaching out to senators. Bush stated that one feature of the consultative process would be ascertaining how best to expedite confirmation. He also looked forward to Senate consultation as a way of guaranteeing that the dialogue and the tone of the debate reflected well on the nation. Bush concomitantly described the confirmation process as an opportunity for senators to eliminate the rancor and bitterness that have apparently dominated recent debates. Bush has, thus, earned substantial credit for expressly and clearly responding to the May 23 Senate Memorandum of Understanding on Judicial Nominations, which prevented detonation of the “nuclear option.” The memorandum specifically encouraged the president to consult with senators before he tenders judicial nominees, particularly for Supreme Court vacancies. The chief executive should implement his pledge to consult in several ways. First, he might want to outline thoroughly and explicitly the process that he will follow. Bush is taking a valuable initial step by hosting the July 11 White House session to which he has invited senators Bill Frist, R-Tenn., and Harry Reid, D-Nev., the majority and minority leaders; Senator Arlen Specter, R-Penn., the Judiciary Committee chair; and Senator Patrick Leahy, D-Vt., the ranking minority member. Broaching some names In addition to explaining the procedures that will apply, Bush might broach the names of particular candidates with senators before nominating them formally. Senators, for their part, must accord him frank, clear appraisals of the individuals mentioned and thorough explanations of reasons for opposition, if any, while maintaining the total confidentiality of those being evaluated. The president may even want to request that senators forward prospective candidates whom they deem acceptable. Consultation will maximize the likelihood of attaining the dignified process that the president proclaimed the nation deserves. Consultation should facilitate the process by minimizing the accusations and recriminations, partisan infighting and divisive behavior that have characterized earlier confirmation processes. For instance, President Bill Clinton worked closely with Senator Orrin Hatch, R-Utah, then-Judiciary Committee chair, in nominating justices Ruth Bader Ginsburg and Stephen Breyer, and this consultation prompted their felicitous confirmation. O’Connor was a moderate conservative, who often cast the decisive vote in highly significant 5-4 cases. Therefore, selection of her replacement promises to be extremely contentious, so any measure that could limit divisiveness should be employed. In the final analysis, consultation may well improve confirmation, and it is risk free, as the chief executive can ignore the advice that he receives. Bush deserves credit for explicating how he intends to nominate a preeminent replacement for O’Connor. He must effectuate thorough, fair nomination and appointments processes, especially by fully consulting. The Senate must respond to these overtures, particularly by according candid, clear evaluations of the potential nominees whose names the chief executive broaches. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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