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Ärende: Filibuster-Part 4 of 3
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Yeah, I know.  I forgot one.


Testimony of SENATOR JOHN CORNYN
BEFORE THE COMMITTEE ON RULES AND ADMINISTRATION, UNITED STATES SENATE
June 5, 2003



Mr. Chairman:

I thank you and the Committee for the opportunity to testify today in strong
support of filibuster reform. And I am pleased to join Majority Leader Frist,
as well as Chairman Lott, Senator Miller, and several other distinguished
Senators and members of this committee, in co-sponsoring Senate Resolution 138.

Although I am new to this body, I have long been a passionate believer in the
fundamental importance of an independent judiciary as the foundation of
government. Indeed, the current struggle to build a free Iraq reminds us that
no society can be just or prosperous without the rule of law. That requires an
independent judiciary.

And so, when I had the honor of serving first as a state district judge, and
then as a member of the Texas Supreme Court, Justice Priscilla Owen and I
joined with other judges to advocate reform of our judicial selection process
in the state of Texas. It has long been our view that elections are not the
right way to go for selecting judges, because it excessively politicizes the
selection process.

But I must say that, whatever the problems the various states may have in their
judicial selection systems, nothing – absolutely nothing – compares to how
badly broken the system of judicial confirmation is here in Washington, D.C.

In Texas, we have debate and discussion, and that is always followed by a vote.
Whatever else you might say about the process, we always finish it. We always
hold a vote.

Of course, voting is precisely what we in the U.S. Senate were elected to do.
Vote up or down, but, as the Washington Post admonished in a February
editorial, “Just Vote.ö

The problems we are facing in the U.S. Senate with respect to the confirmation
of judges are even worse than I had imagined before coming here. And I am not
the only freshman Senator to feel that way. As you know, Mr. Chairman, all ten
freshman Senators wrote in a bipartisan letter to Senate leadership on April 30
that “we are united in our concern that the judicial confirmation process is
broken and needs to be fixed.ö

I therefore welcome the committee’s discussion today of whether the current
filibusters of judicial nominations pose a threat to our independent judiciary.

The American people need the courts to be fully staffed. Our judicial selection
process should focus simply on identifying and confirming well-qualified
jurists committed to enforcing the law, not their will or agenda.

For far too long, this process has been caught in a downward spiral of politics
and delay. As President Bush recognized in a speech in the Rose Garden on May
9, 2003, “during the administration of former Presidents Bush and Clinton, . .
. too many appeals court nominees never received votes.ö

So the problem we face today is not new. It has faced Presidents of both
parties. And it has existed in the Senate under the control of both parties.

Yet the problem has not been fixed. Quite the opposite: the problem is even
worse today. And the problem threatens to destroy the integrity of our
constitutional system of advice and consent and of an independent judiciary.

For months, a bipartisan Senate majority has tried to stop the politics of
delay and tried to hold up-or-down votes on a number of judicial nominees.
However, a partisan minority of Senators is blocking the Senate from holding
those votes. As one leader of the current filibusters has said, “there is not a
number [of hours] in the universe that would be sufficientö for debate on
certain nominees.

The current use of filibusters, not to ensure adequate debate, but to block a
Senate majority from confirming judges, is unprecedented and wrong. 

This indefinite, needless, and wasteful delay distracts the Senate from other
important business. And it hurts Americans. It leaves not only would-be judges
in limbo, but also thousands of litigants.

President Bush has rightly called the situation “a disgrace.ö

Over 175 newspaper editorials representing 35 states condemn the current
filibusters of judicial nominees. Last month, legal scholars of both parties
told the Senate Constitution Subcommittee that filibusters of judicial
nominations are uniquely offensive to our nation’s constitutional design. Law
professor and former Clinton adviser Michael Gerhardt has condemned
supermajority requirements for confirming nominees, saying they “would be more
likely to frustrate rather than facilitate the making of meritorious
appointments.ö

Until now, members of this distinguished body have long and consistently obeyed
an unwritten rule not to block the confirmation of judicial nominees by
filibuster.

As renowned former Senate parliamentarian Floyd Riddick once said, Senators are
expected to “restrain themselvesö and “not abuse the privilegeö of debate. And
out of respect for the independent judiciary, Senators have historically and
consistently exercised such restraint.

But this Senate tradition, this unwritten rule, has now been broken. The
current judicial confirmation crisis demands a response. Senate Resolution 138
is that response. It guarantees full debate on nominees, while ensuring the
ability of a Senate majority to hold up-or-down votes.

It is a bipartisan proposal. It originates with the filibuster reform proposal
introduced by Senators Harkin and Lieberman in 1995, and reintroduced by
Senator Miller earlier this year.

That proposal was endorsed by 19 Senate Democrats as well as the New York
Times, which editorialized in 1995 that “now is the perfect moment . . . to get
rid of an archaic rule that frustrates democracy and serves no useful purpose.ö

Last month, Senator Miller testified before the Senate Constitution
Subcommittee that, “at the very least, . . . I would hope we would consider
applying my proposal to judicial nominations.ö I could not agree more, and I am
so pleased that, following that hearing, we have been able to introduce S. Res.
138 as a bipartisan effort.

Proposals quite similar to S. Res. 138 have been endorsed by Congressional
experts from think tanks as diverse as the American Enterprise Institute, the
Brookings Institution, and the Cato Institute.

The resolution is a reasonable, common-sense proposal, with a lot of precedent
to support it.

The Senate has previously considered at least thirty proposals to eliminate
filibusters altogether. And there are literally dozens of laws on the books
today which prevent a minority of Senators from filibustering certain kinds of
measures – from the Budget Act of 1974 to the War Powers Resolution.

According to the Congressional Research Service, the following twenty-six laws
limit debate or otherwise eliminate the minority’s power to filibuster in the
Senate on certain specified matters:

Federal Budget

Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. §§ 636, 641,
688) 
Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. §§ 907a-d) 
War, National Emergency, and National Security

War Powers Resolution (50 U.S.C. §§ 1544-46) 
National Emergencies Act (50 U.S.C. § 1601) 
International Emergency Economic Powers Act (50 U.S.C. § 1701) 
Defense Base Closure and Realignment Act of 1990 (10 U.S.C. § 2687 note) 
Cuban Liberty and Democratic Solidarity Act of 1996 (22 U.S.C. § 6064) 
Arms Control and Foreign Assistance

International Security Assistance and Arms Export Control Act of 1976 (Pub. L.
No. 94-329) 
Arms Export Control Act (22 U.S.C. § 2753 et seq.) 
Atomic Energy Act of 1978 (42 U.S.C. §§ 2153-59h) 
International Trade

Trade Act of 1974 (19 U.S.C. § 2191 et seq.) 
Uruguay Round Agreements Act (19 U.S.C. § 3535) 
Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. § 3803 et seq.) 
Energy and Environment

Department of Energy Act of 1978 (22 U.S.C. § 3224a) 
Energy Policy and Conservation Act (42 U.S.C. § 6421) 
Power Plant and Industrial Fuel Use Act of 1978 (42 U.S.C. § 8374) 
Nuclear Waste Policy Act of 1982 (42 U.S.C. §§ 10131 et seq.) 
Public Utility Regulatory Policies Act of 1958 (43 U.S.C. § 2008) 
Outer Continental Shelf Lands Act (43 U.S.C. § 1337) 
Alaska Natural Gas Transportation Act of 1976 (15 U.S.C. § 719f) 
Alaska Nat’l Interest Lands Conservation Act (16 U.S.C. §§ 3232-33) 
Employment Retirement Security

Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1322a) 
Pension Reform Act of 1976 (29 U.S.C. § 1306) 
General Government

Congressional Review Act (5 U.S.C. § 802) 
Executive Reorganization Act (5 U.S.C. § 912) 
District of Columbia Home Rule Act (Section 604) 
The judicial confirmation process should surely be added to this list. To
protect the independence of our judiciary and to restore the unwritten rules
long respected by the Senate until now, we should immunize the Senate’s process
of confirming judges from filibuster abuse and approve S. Res. 138.

I want to just briefly mention the issue of Abe Fortas. Some have said that he
was the first – and only – judicial nominee ever to be filibustered. Others,
like myself, have argued that he was not defeated due to a filibuster; rather,
he was defeated because he was not supported by 51 Senators. Former U.S.
Senator Robert P. Griffin has expressed precisely the same view, both then and
in a recent letter, which I also enclose here.

After just a few days of debate, supporters of Fortas’s nomination to be Chief
Justice filed for cloture to end debate prematurely. When the cloture vote was
taken up two days later, they failed to obtain the support of 51 Senators to
invoke cloture, due to allegations of ethical improprieties and bipartisan
opposition (24 Republicans and 19 Democrats). Moreover, had there been an
actual confirmation vote, Fortas might have been defeated by a vote of 46-49,
based on various indications in the Congressional Record. President Johnson
thus withdrew the nomination, rather than subject Fortas to further debate.
(Fortas later resigned under threat of impeachment.)

In other words, Fortas was denied confirmation not due to a filibuster, but
because he lacked the support of 51 Senators.

Indeed, several Senators who opposed Fortas specifically and repeatedly noted
that they were not filibustering, or otherwise trying to prevent a majority
from confirming him. They were simply seeking time to debate and expose the
serious problems with the nomination:

“[A]n adequate and full discussion on this great and important issue should not
be termed a filibuster.ö 114 Cong. Rec. 28,115 (Sep. 25, 1968) (statement of
Sen. Griffin). 
“I am certain that, in due time, we will come along, in the extended debate
process, to a vote of some kind of some point. The main thing is that this
great deliberative body . . . ought to discuss this question.ö 114 Cong. Rec.
28,155 (Sep. 25, 1968) (statement of Sen. Hollings). 
“[I]t takes some time to develop these facts. . . . [T]he proponents are just
waiting in the aisle, almost, to file a cloture petition at some early time . .
. . [G]ive us just a little time, Mr. Leader.ö 114 Cong. Rec. 28,251-52 (Sep.
26, 1968) (statement of Sen. Stennis). 
“[I]t is right and proper that the U.S. Senate carefully deliberate this
nomination . . . . Debate is not a dilatory tactic. . . . I am not willing now
to say those of us who oppose Justice Fortas are a minority.ö 114 Cong. Rec.
28,253 (Sep. 26, 1968) (statement of Sen. Baker). 
“[T]here are a good many more than one—there may be half of the Senate; there
may be more than half of the Senate—that share our concern.ö 114 Cong. Rec.
28,253 (Sep. 26, 1968) (statement of Sen. Holland). 
“[W]e in the Senate of the Untied States stand ready here and now, today, to
discharge fully and completely, not with the undue haste that seems to be
counseled by some, but rather with the deliberation that the significance of
the occasion requires.ö 114 Cong. Rec. 28,254 (Sep. 26, 1968) (statement of
Sen. Hansen). 
“I do not rise to defend a filibuster, because I firmly believe that as long as
Senators are seeking the floor to speak on the issue before the Senate—and are
addressing themselves to that issue without resort to dilatory tactics, then we
do not have a filibuster. . . . [W]e do not have to defend a filibuster for we
do not have a filibuster.ö 114 Cong. Rec. 28,585 (Sep. 27, 1968) (statement of
Sen. Griffin). 
“[T]his debate has given some the idea that someone is doing a wrong thing here
by debating it a little, even before the motion to take up has prevailed. This
is one place where it can be discussed, and for that I make no apologies, if it
takes us a little time.ö 114 Cong. Rec. 28,748 (Sep. 30, 1968) (statement of
Sen. Stennis). 
“[T]hus far, there have been only 4 days of Senate debate on this very
important, historic issue. . . . [A] filibuster, by any ordinary definition, is
not now in progress.ö 114 Cong. Rec. 28,930 (Oct. 1, 1968) (statement of Sen.
Griffin). 
“I would not like to see the Senate gag itself . . . there are other things
here that need exploration. That requires time.ö 114 Cong. Rec. 28,933 (Oct. 1,
1968) (statement of Sen. Dirksen). 
“An examination of the Congressional Record . . . clearly reveals that the will
of the majority was not frustrated. . . . [I]f every Senator who made his
position known in the Record had actually been present and had voted, there
would have been 47 votes for cloture and 48 votes, or a majority, against
cloture. . . . It should not be overlooked that the distinguished Senator from
Kentucky [Mr. Cooper] announced during the debate that, although he would vote
for cloture, he was against the confirmation of the nomination of Mr. Fortas as
Chief Justice. On the basis of the Record, then, it is ridiculous to say that
the will of a majority in the Senate has been frustrated.ö 114 Cong. Rec.
29,150 (Oct. 2, 1968) (statement of Sen. Griffin). 
But however you choose to characterize the Fortas situation, it is certainly a
far cry from what we are facing today.

Fortas was debated for just a few days. He was opposed on ethical grounds, and
by a bipartisan group of Senators. And he did not have the support of 51 or
more Senators.

The current filibusters of Miguel Estrada, Justice Owen, and perhaps others
bear no resemblance to the situation Fortas faced. There can be no disputing
that the current situation is simply unprecedented.

I would also like to point out that Richard Paez, whom some supporters of
filibusters have cited, was not only confirmed; he was confirmed only because
his Senate opponents restrained themselves and voted to end debate.

Indeed, on numerous occasions when a judicial nominee has enjoyed the support
of a majority of Senators, but fewer than the 60 votes necessary under the
Senate’s cloture rule, the Senate has nevertheless acted to confirm the
judicial nominee. This Senate tradition and practice has been applied at every
level of the federal judiciary:

Judges confirmed with less than 60 votes (97th-108th Congresses)

Judge Court Vote Date of Vote 
J. Harvie Wilkinson III 4th Cir. 58-39 Aug. 9, 1984 
Alex Kozinski 9th Cir. 54-43 Nov. 7, 1985 
Sidney A. Fitzwater N.D. Tex. 52-42 Mar. 18, 1986 
Daniel A. Manion  7th Cir. 48-46 June 26, 1986 
Clarence Thomas S. Ct. 52-48 Oct. 15, 1991 
Susan O. Mollway D. Haw. 56-34 June 22, 1998 
William A. Fletcher 9th Cir. 57-41 Oct. 8, 1998 
Richard A. Paez 9th Cir. 59-39 Mar. 9, 2000 
Dennis W. Shedd  4th Cir. 55-44 Nov. 19, 2002 
Timothy M. Tymkovich 10th Cir. 58-42 April 1, 2003 
Jeffrey Sutton 6th Cir. 52-41 April 29, 2003 

I’d like to conclude by repeating the old saw, mentioned earlier by Majority
Leader Frist, that in Washington, far too often, what matters most is not
whether you win or lose, but where you place the blame.

That is certainly the problem with the judicial confirmation process. Instead
of fixing the problem, we nurse old grudges, debate mind-numbing statistics,
and argue about who hurt whom first, the most, and when.

It is time to end the blame game, fix the problem, and move on. Wasteful and
unnecessary delay in the process of selecting judges hurts our justice system
and harms all Americans. It is intolerable no matter who occupies the White
House. And filibusters are by far the most virulent form of delay imaginable.

As all ten freshman Senators have stated: “None of us were parties to any of
the reported past offenses, whether real or perceived. None of us believe that
the ill will of the past should dictate the terms and direction of the future.
Each of us firmly believes the United States Senate needs a fresh start.ö

Thank you for the opportunity to testify, Mr. Chairman.



John 

America:  First, Last, and Always!
LIBERALS AND DOGS KEEP OFF THE GRASS!

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