    [Senate Hearing 108-227]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-227

        JUDICIAL NOMINATIONS, FILIBUSTERS, AND THE CONSTITUTION: WHEN A
                    MAJORITY IS DENIED ITS RIGHT TO CONSENT

    =======================================================================

                                    HEARING

                                   before the

       SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 6, 2003

                                   __________

                               Serial No. J-108-9

                                   __________

             Printed for the use of the Committee on the Judiciary

    90-460              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
    ____________________________________________________________________________
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                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman
    CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
    ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                 Bruce Artim, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                     ------

       Subcommittee on the Constitution, Civil Rights and Property Rights

                          JOHN CORNYN, Texas, Chairman
    JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
    LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
                           James C. Ho, Chief Counsel
                      Bob Schiff, Democratic Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
        prepared statement and attachments...........................   189
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................    46
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     5
        prepared statement...........................................   263
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
      prepared statement.............................................   295
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts..................................................     7
        prepared statement...........................................   305
    Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
      prepared statement.............................................   311
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   314

                                   WITNESSES

    Calabresi, Steven, Professor of Law, Northwestern University Law
      School, Chicago, Illinois......................................    32
    Eastman, John, Professor of Law, Chapman University School of
      Law, and Director, Claremont Institute Center for
      Constitutional Jurisprudence, Orange, California...............    22
    Fein, Bruce, Esq., Fein & Fein, Washington, D.C..................    24
    Gerhardt, Michael, Hanson Professor of Law, William and Mary Law
      School, Williamsburg, Virginia.................................    26
    Greenberger, Marcia, Co-President, National Women's Law Center,
      Washington, D.C................................................    28
    Kmiec, Douglas, Dean, Columbus School of Law, Catholic University
      of America, Washington, D.C....................................    31
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York...........................................................    10
        prepared statement and attachment............................   353
    Specter, Hon. Arlen, a U.S. Senator from the State of
      Pennsylvania...................................................    16

                             QUESTIONS AND ANSWERS

    Wrtten questions submitted to all Panel II witnesses by Senator
      Cornyn.........................................................    63
    Written questions submitted to Michael Gerhardt by Senator Leahy.    66
    Written question submitted to John Eastman by Senator Cornyn.....    67
    Responses of Steven Calabresi to questions submitted by Senator
      Cornyn.........................................................    68
    Responses of John Eastman to questions submitted by Senator
      Cornyn.........................................................    70
    Responses of Bruce Fein to questions submitted by Senator Cornyn.    82
    Responses of Michael Gerhardt to questions submitted by Senator
      Cornyn.........................................................    87
    Responses of Marcia Greenberger to questions submitted by Senator
      Cornyn.........................................................    96
    Responses of Douglas Kmiec to questions submitted by Senator
      Cornyn.........................................................    99

                           SUBMISSIONS FOR THE RECORD

    American Center for Law and Justice, Inc., Virginia Beach,
      Virginia, statement............................................   108
    Calabresi, Steven, Professor of Law, Northwestern University Law
      School, Chicago, Illinois, prepared statement..................   146
    Carle, David, Press Secretary, Hon. Patrick J. Leahy, letter.....   152
    Committee for Justice, Lawyers' Committee on Supreme Court
      Nominations, Washington, D.C., September 29, 1968, statement
      (Cutler letter)................................................   196
    Concerned Women for America, Thomas L. Jipping, Washington, D.C.,
      statement......................................................   154
    Congressional Research Service, Richard S. Beth and Christopher
      M. Davis, Government and Finance Division, Washington, D.C.,
      memorandum.....................................................   185
    Eads, Linda S., Associate Professor of Law, Southern Methodist
      University, Dallas, Texas, letter..............................   226
    Eastman, John, Professor of Law, Chapman University School of
      Law, and Director, Claremont Institute Center for
      Constitutional Jurisprudence, Orange, California, prepared
      statement and attachments......................................   227
    Fein, Bruce, Esq., Fein & Fein, Washington, D.C., prepared
      statement......................................................   260
    Gerhardt, Michael, Hanson Professor of Law, William and Mary Law
      School, Williamsburg, Virginia, prepared statement and
      attachment.....................................................   265
    Greenberger, Marcia, Co-President, National Women's Law Center,
      Washington, D.C., prepared statement...........................   285
    Griffin, Robert P., Traverse City, Michigan, letter and
      attachment.....................................................   220
    Hyman, Andrew T., Attorney at Law, Ware, Fressola, Van Der Sluys
      & Adolphson LLP, Monroe, Connecticut, letter...................   299
    Kmiec, Douglas, Dean, Columbus School of Law, Catholic University
      of America, Washington, D.C., prepared statement...............   307
    McGinnis, John C., Professor of Law, Northwestern Law School and
      Michael B. Rappaport, Professor of Law, University of San Diego
      School of Law, joint letter....................................   321
    Mikva, Abner J., Visiting Professor, Law School, University of
      Chicago, Chicago, Illinois, letter.............................   325
    Miller, Hon. Zell, a U.S. Senator from the State of Georgia:
        statement....................................................   327
        Wall Street Journal, March 10, 2003, commentary..............   330
    Paulsen, Michael Stokes, Briggs & Morgan Professor of Law,
      University of Minnesota Law School, Minneaplois, Minnesota,
      letter.........................................................   332
    People for the American Way, Elliot M. Mincberg, Vice-President
      and Legal Director, Washington, D.C., letter and memorandum....   334
    Presser, Stephen B., Raoul Berger Professor of Legal History,
      Northwestern University School of Law, Chicago, Illinois,
      statement......................................................   341
    Rotunda, Ronald D., George Mason University Foundation Professor
      of Law, George Mason University, Arlington, Virginia, letter...   349
    Solum, Lawrence B., Professor of Law, University of San Diego,
      San Diego, California, letter..................................   358
    Specter, Hon. Arlen, Legal Times, July 8, 2002, article..........   362
    Washington Times:
        Bruce Fein, March 23, 2003, article..........................   366
        James L. Swanson, May 6, 2003, article.......................   368
        Bruce Fein, May 13, 2003, article............................   370
    The White House:
        Alberto R. Gonzales, Counsel to the President, May 6, 2003,
          letter.....................................................   372
        Office of the Press Secretary, news releases.................   380

        JUDICIAL NOMINATIONS, FILIBUSTERS, AND THE CONSTITUTION: WHEN A
                    MAJORITY IS DENIED ITS RIGHT TO CONSENT

                                  ----------

                              TUESDAY, MAY 6, 2003

                                  United States Senate,
    Subcommittee on the Constitution, Civil Rights and Property
                                                        Rights,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:45 p.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
    Chairman of the Subcommittee, presiding.
        Present: Senators Cornyn, Craig, Hatch, Specter, Kyl,
    Feingold, Kennedy, Schumer and Durbin.

    OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
                             STATE OF TEXAS

        Chairman Cornyn. This hearing of the Senate Subcommittee on
    the Constitution, Civil Rights and Property Rights shall come
    to order. Before I begin an opening statement and turn over the
    floor to Senator Feingold as the Ranking Member of this
    Subcommittee for his opening statement, I would like to begin
    with a few brief introductory remarks as the newest member of a
    distinguished line of Senators who have chaired this
    Subcommittee, including most recently my distinguished
    colleague Senator Russell Feingold.
        Senator Feingold is an honorable and public-minded person,
    and I am glad we have already developed what I believe to be a
    good, cooperative bipartisan relationship. I think we agree,
    and he can certainly speak for himself, and no doubt will, but
    we agree that the current judicial confirmation process is
    broken and something needs to be done, and the purpose of this
    hearing is to talk about ideas about what can be done, and we
    have a distinguished panel of Senators to kick us off. I look
    forward to working with Senator Feingold and Senator Kennedy
    and all the members of this Subcommittee to try to fix the
    problem. I believe we need a fresh start in the U.S. Senate,
    and I hope that fresh start will begin today.
        Second, I would like to say that when I was informed that I
    would have the honor of chairing this Subcommittee I was
    looking forward to directing the attention of this
    distinguished Subcommittee to many important issues that face
    our country. For example, the ongoing war against terror raises
    important issues to our legal and constitutional system of
    Government. In particular I am concerned about the need to
    ensure continuity in Government should a catastrophic event,
    God forbid, befall the Washington, D.C. community, including
    the Congress, the Executive Branch or the Supreme Court, issues
    that raise important constitutional questions which may even
    require a constitutional amendment to address.
        For another example, Senators Kyl and Feinstein have worked
    long and cooperatively to introduce a constitutional amendment
    to protect the rights of crime victims in the country. I am
    pleased to be a cosponsor of that particular amendment and I
    look forward to chairing the Subcommittee markup on it.
        So there are many other topics besides judicial
    confirmation that I would like the Subcommittee to focus on and
    I am sure that Senator Feingold agrees with me that there are
    many that need to be addressed. But unfortunately the Senate
    now faces a problem of governance, and I think a problem of
    constitutionality within the Senate itself. That problem
    demands our attention and demands the attention of this
    Subcommittee. Although there are many other important issues
    that I would very much like for the Subcommittee to focus on,
    the current judicial confirmation crisis raises important
    issues impacting Senate governance and our constitutional
    democracy. The implications of this crisis for our fundamental
    Democratic principle of majority rule are before us right here,
    right now in this body, and they demand the Subcommittee's
    attention.
        I open this hearing today to focus on judicial nominations,
    filibusters and the Constitution when a majority is denied its
    right to consent.
        This week the Senate will mark a rather dismal political
    anniversary. Two full years have passed since President Bush
    announced his first class of nominees to the Federal Court of
    Appeals. In my opinion it is an exceptional group of legal
    minds. Some of them however still await confirmation. What is
    more, two of them are currently facing unprecedented
    filibusters, and more filibusters of other nominees may be
    threatened.
        Never before has the judicial confirmation process been so
    broken and the constitutional principles of judicial
    independence and majority rules so undermined.
        I would like to take just a few moments to discuss those
    principles here.
        I also discussed those in an op-ed published just this
    morning on the Wall Street Journal's opinionjournal.com
    website, and without objection I would like that to be made
    part of the record.
        The fundamental essence of our democratically-based system
    of government is both majestic and simple: majorities must be
    permitted to govern. As our Nation's founding fathers explained
    in Federalist No. 22, ``the fundamental maxim of republican
    government...requires that the sense of the majority should
    prevail.'' Any exceptions to the doctrine of majority rule,
    such as any rule of a supermajority vote being required on
    nominations, must, in my view, be expressly stated in the
    Constitution. For example, the Constitution expressly provides
    for a supermajority, two-thirds voting rule, for Senate
    approval of treaties and other matters, and that is not the
    case, however, with regard to judicial nominees.
        At the same time we of course have an important tool here
    in the United States Senate called the filibuster. Let me be
    clear in stating that the filibuster, properly used, can be a
    valuable tool in ensuring that we have a full and adequate
    debate. Certainly not all uses of the filibuster are abusive or
    unconstitutional. As we Senators are often fond of pointing
    out, particularly when we are in a mood to talk, the House of
    Representatives is designed to respond to the passions of the
    moment. The Senate is also a democratic institution governed by
    majority rule, but it serves as the saucer to cool those
    passions and to bring deliberation and reason to the matter.
    The result is a delicate balance of democratically
    representative and accountable Government, and yet also,
    deliberative and responsible Government.
        But the filibuster, like any tool, can be abused. I have
    concerns about its abuse here. Today a minority of senators
    appears to be using the filibuster, not simply to ensure
    adequate debate but to actually block some of our Nation's
    judicial nominees and to prevent those seats from being filled
    by people of the President's choosing by forcing upon the
    confirmation process a supermajority requirement of 60 votes.
        The public's historic aversion to such filibusters is well
    grounded. These tactics not only violate democracy and majority
    rule, but arguably offend the Constitution as well. Indeed,
    prominent lawyers like Lloyd Cutler and Senators like Tom
    Daschle, Joe Lieberman and Tom Harkin have condemned filibuster
    misuse as unconstitutional.
        Time does not permit me to read the previous statements of
    these individuals condemning filibusters as unconstitutional,
    but without objection, I would like to have them submitted and
    made part of the record.
        Moreover, abusive filibusters against judicial nominations
    uniquely threaten both presidential power and judicial
    independence, and are thus far more legally dubious than
    filibusters of legislation, an area of preeminent Congressional
    control.
        To justify the current filibusters some have pointed to Abe
    Fortas. President Lyndon Johnson nominated Fortas to be Chief
    Justice in 1968, but what is critical to understand about the
    Fortas episode is that majority rule was not under attack in
    that case. Dogged by allegations of ethical improprieties and
    bipartisan opposition, Fortas was unable to obtain the votes of
    at least 51 Senators to prematurely end debate. That was a
    serious problem for Fortas, because if there were not even 51
    Senators that wanted to close the debate, it was far from clear
    whether a simple majority of Senators present and voting would
    vote to confirm. And of course, history tells us that rather
    than allow further debate, President Johnson withdrew the
    nomination all together just 3 days later.
        Nor do the Sam Brown or Henry Foster episodes serve as
    precedent. There debate had not even begun when their
    supporters sought to end the debate prematurely, so the
    filibuster there was simply an effort to ensure debate and not
    to alter the constitutional standard.
        It is also worth noting back in 1968 future Carter and
    Clinton White House counsel, Lloyd Cutler, along with numerous
    other leading members of the bar and the legal academy, signed
    a letter urging all Senators that nothing would more poorly
    serve our constitutional system than for the nominations to
    have earned the approval of the Senate majority, but to be
    thwarted because the majority is denied a chance to vote.
    Without objection, the Cutler letter will, also be entered in
    the record.
        But of course, as I mentioned, Fortas was not even able to
    command 51 votes to close debate, and President Johnson
    withdrew the nomination as a result, so that letter was really
    a moot point.
        The Fortas episode though is a far cry from the present
    situation, and the Cutler letter condemning filibusters of
    judicial nominations, when used to deny the majority its right
    to consent, most certainly would apply today. After extensive
    debate, Miguel Estrada, Priscilla Owen and other nominees can
    be said to enjoy bipartisan majority support, yet they face an
    uncertain future of indefinite debate.
        By insisting that ``there is not a number of hours in the
    universe that would be sufficient'' for debate on certain
    nominees, some Senators concede that they are using the
    filibuster, not to ``ensure adequate debate'', but to change
    constitutional requirement by imposing a supermajority
    requirement for judicial confirmations.
        Whether unconstitutional or merely destructive of our
    political system, the current confirmation crisis cries out for
    reform. As all 10 freshmen Senators, including myself, stated
    last week in a letter to Senate leadership, ``we are united in
    our concern that the judicial confirmation process is broken
    and needs to be fixed.'' Veteran Senators from both parties
    expressed similar sentiments, and some of them are here in our
    first panel today.
        Accordingly, today's hearing will explore various reform
    proposals. Our first panel is composed exclusively of Senators,
    actually two Democrats and one Republican Senator. All of them
    members of this body, have each experienced the current crisis
    firsthand. All of them have offered proposals for reform. These
    proposals will be debated, and they should be, but what is
    important is that these Senators acknowledge the current
    confirmation crisis and have urged reform, and I certainly want
    to congratulate them for doing so.
        Our second panel is comprised of the Nation's leading
    constitutional experts who have studied and written about the
    confirmation process. Many of them have been called upon to
    testify in the past by members of both political parties, and I
    am pleased to have all six of them here today. They are a
    distinguished group, and I look forward to formally introducing
    them to the Subcommittee in just a few minutes.
        I want to close by saying that the judicial confirmation
    process has reached the bottom of a decades-long downward
    spiral. Our current state of affairs is neither fair nor
    representative of the bipartisan majority of this body. For
    democracy to work and for the constitutional principle of
    majority rule to prevail, obstructionism must end, and we must
    bring matters to a vote. As former Senator Henry Cabot Lodge
    famously said of filibusters: ``To vote without debating is
    perilous, but to debate and never vote is imbecile.'' Two years
    is too long, and I believe the Senate needs a fresh start.
        And with that, I will turn the floor over to the ranking
    minority member of the Subcommittee, Senator Feingold, and I
    know Senator Kennedy has indicated that he has a pressing
    engagement, and Senator Feingold and I are going to try to work
    to accommodate him, but at this point let me now recognize
    Senator Feingold.
        [The prepared statement of Chairman Cornyn appears as a
    submission for the record.]

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Feingold. Thank you, Mr. Chairman. I will be brief
    so that Senator Kennedy has an opportunity to speak before he
    has to go.
        I want to thank you, Mr. Chairman, for your very kind
    remarks about me, for the extremely courteous way in which you
    have started your job as Chairman, coming to my office and
    meeting with me about the Subcommittee and the way that you
    have approached me on all of these issues, I appreciate it, and
    I look forward to this opportunity to work together.
        I also was interested in your brief sketch of some of the
    issues you were interested in for the Subcommittee that you
    just shared, including of course the fact that we want to play
    whatever role we can in trying to resolve this very difficult
    problem with regard to judges. This is not the normal province
    of our Subcommittee. It is that of one of the other
    Subcommittees but this hearing is apparently about the
    constitutional issues that may or may not exist in this regard.
    Nonetheless, I want to say that I agree with we have got to
    somehow deal with this logjam, and I want to be a positive
    force to make that happen.
        Let me also say, since this is a Constitution Subcommittee,
    that I hope that the work of this Subcommittee will continue to
    address that very document and protecting that very document
    that is the foundation for today's hearing. That means to me
    that this Subcommittee has to continue to fight to protect the
    civil liberties of all Americans against some of the excesses
    that I believe have occurred in the context of the post 9/11
    world, understandably, but that we have to deal with those.
        I am going to tell you, Mr. Chairman, and you know this
    already, I hope to get through another Congress without
    amending the Bill of Rights. I think it is a great thing that
    Congress has never chosen to amend the Bill of Rights, and
    there are various proposals that you and I are going to
    disagree about where I will fight against this, but we will
    fight in a courteous manner, and it will be I am sure a very
    interesting experience.
        Finally, I appreciate the collegial way in which you and
    your staff have handled the preparations for this hearing. This
    is an issue in which Senators and others involved in the
    process have strong and passionately held views, tempers are
    short and relations are frayed in our Committee in large part
    because of this issue of judicial nominations. I hope that with
    some reasoned discussion and negotiation we can get past this
    very rough spot in the Committee's history and return to more
    constructive work together. If this hearing is the beginning of
    an effort to reduce the level of confrontation on judicial
    nominations, that would be a very good thing.
        Unfortunately, I have to say, Mr. Chairman, the title of
    the hearing suggests that this could be intended to turn up the
    heat rather than cool things down. The title of the hearing I
    believe is: ``Judicial nominations, Filibusters and the
    Constitution: When a Majority is Denied its Right to Consent.''
    So take it for what it will. I am not sure that is the most
    neutral title we could have had.
        The argument recently advanced on the floor by a number of
    Senators that filibusters of judicial nominees are
    unconstitutional seems to be part of a campaign by some of
    political intimidation launched by supporters of the
    President's nominees. If this hearing is a prelude to a floor
    effort to rewrite the Senate rules or circumvent them through
    parliamentary tactics, I have to say I doubt very much they
    will succeed, and I am sure that they will be met with stiff
    resistance.
        The end result could be to take the tensions we feel in
    this Committee and spread them to the floor of the Senate, and
    that would be a real shame in my view, and I honestly believe
    the Chairman does not want that to happen.
        It is also a shame that those who support the President's
    nominees are trying to inflate what is essentially a political
    fight into a constitutional crisis. For those of us who take
    the Constitution seriously it is actually odd to hear
    colleagues essentially arguing that one is violating one's oath
    of office by voting not to end debate on a nomination. As some
    in the audience may know, I spent 7 years in this body fighting
    to pass a campaign finance reform bill. For years that effort
    was stymied by filibusters. We had a majority of Senators after
    2 years, McCain and I did. We did not say that it was
    unconstitutional that our bill was not passed. We said this is
    the way the Senate works and the way it has worked certainly in
    my lifetime. Senators who have supported reform had many
    spirited and sometimes even bitter debates with Senators who
    opposed our bill. Never did we contend that they were violating
    their oaths of office by using every tool available to oppose a
    bill with which they strongly disagreed.
        Since the hearing title raises the question of the
    constitutionality of the filibuster, let me very briefly give
    my view up front. The Constitution does not prohibit opponents
    of a judicial nominee, or any nominee for that matter, from
    using a filibuster to block a final vote on the nominee. The
    majority does not have a constitutional right to confirm a
    nominee as the title of the hearing implies. I am sure we will
    hear more on this from our witnesses today, but I must say I am
    eager to hear the argument that would overturn the practices of
    the Senate dating back more than a century.
        If the arguments that are advanced today are correct, then
    Republicans acted unconstitutionally in 1995 when they defeated
    the nomination of Henry Foster to be Surgeon General by using a
    filibuster. If this is all to be simply about majorities and is
    somehow mandated by the Constitution, they violated the
    Constitution when they required cloture votes before ultimately
    confirming Stephen Breyer, Rosemary Burkett, H. Lee Sarokin,
    Richard Paez and Marsha Berzon to circuit court judgeships,
    David Sacher to the Surgeon General's office, and Ricki Tigert
    to the FDIC, Walter Dellinger to the DOJ's Office of Legal
    Counsel, and the current Governor of Arizona, Janet Napolitano,
    to be U.S. Attorney. They violated their oaths of office when
    they forced the nomination of Sam Brown to be withdrawn because
    they refused to end the debate on his nomination.
        These are just the cases where a cloture vote was required
    to get a nomination through. I will not even start on the list
    of nominees who never even got a hearing or vote in the
    Judiciary Committee, but there were dozens of them. Was not the
    majority denied its right to consent just as much in those
    cases? Is there any meaningful constitutional difference
    between a filibuster on the one hand and on the other hand a
    hold on the Senate floor, or a wink and a nod between a
    Committee Chairman and a member who just does not like a
    nominee? I assume our witnesses will enlighten us if there is.
        Mr. Chairman, in the end, the seemingly insurmountable
    differences we have on judicial nominees can be resolved only
    the way that seemingly insurmountable differences are resolved
    in almost all other hotly contested issues in the Senate, and
    as you said, that is through negotiation and compromise. Of
    course for there to be a compromise, both sides have to be
    willing to engage in that effort. So far I have to say the
    White House seems intent on forging ahead with its efforts to
    push through as many nominees with the most extreme views as
    possible in the shortest possible time.
        The majority on this Committee have participated in that
    strategy by pursuing a ``take no prisoners'' approach,
    disregarding decades of practice and precedent regarding the
    scheduling of hearings and votes on nominees. That is why we
    find ourselves constantly fighting instead of trying to work
    out a solution. I do think it is possible, Mr. Chairman, for
    reason to prevail, reducing the need for displays of raw
    political power. As I have told you before, Mr. Chairman, both
    publicly and privately, I am sincerely interested in working
    with you to try to resolve this problem. I remain hopeful that
    we can do that despite the title and the thrust of this hearing
    today.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Feingold appears as a
    submission for the record.]
        Chairman Cornyn. Thank you, Senator Feingold.
        Senator Kennedy.

     STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
                         STATE OF MASSACHUSETTS

        Senator Kennedy. Thank you, Mr. Chairman. I want to join
    Senator Feingold in expressing our appreciation for all the
    courtesies that you have shown us, and the seriousness with
    which you have undertaken the leadership on this Committee, and
    I am grateful for the opportunity to say a word about this
    issue which is of such enormous importance and consequence for
    our country, and for our country really to understand what both
    the historic role has been and what our founding fathers really
    intended.
        It is always interesting in a hearing such as this, as we
    are trying to find out where authority and responsibilities
    lie, to look back at the Constitutional Convention itself. In
    the Constitutional Convention, when it met in Philadelphia from
    late May until mid September in 1787, on May 29th the
    Convention began its work on the Constitution with the Virginia
    Plan introduced by Governor Randolph, which provided that a
    national judiciary be established or be chosen by the national
    legislature, and under this plan the President had no role at
    all, in the selection of judges. When this provision came
    before the Convention on June 5th, several members were
    concerned that having the whole legislature select judges was
    to unwieldy and James Wilson suggested an alternative proposal
    that the President be given the sole power to appoint judges.
    That idea had no support. Rutledge of South Carolina said that
    he was by no means disposed to grant so great a power to any
    single person. James Madison agreed that the legislature was
    too large a body, and stated that he was rather inclined to
    give the appointment power to the Senatorial Branch of the
    legislative group, ``sufficiently stable and independent to
    provide deliberate judgments,'' were the words he used. A week
    later Madison offered a formal motion to give the Senate the
    sole power to appoint judges, and this motion was adopted
    without any objection whatsoever at the Constitutional
    Convention.
        On June 19th the Convention formally adopted the working
    draft of the Constitution, and it gave the Senate the exclusive
    power to appoint the judges. July 18th the Convention
    reaffirmed its decision to grant the Senate its exclusive
    power. James Wilson again proposed judges be appointed by the
    Executive, and again his motion was defeated overwhelmingly.
    The issue was considered again on July 21st, and the Convention
    again agreed to the exclusive Senate appointment of judges. In
    a debate concerning the provision, George Mason called the idea
    of Executive appointment of Federal judges a dangerous
    precedent. Not until the final days of the Convention was the
    President given power to nominate the judges. So on September
    4th, two weeks before the Convention's work was completed, the
    last important decision made by the founding fathers, the
    Committee proposed that the President should have a role in
    selecting judges. It stated the President shall ``nominate, and
    by and with the advice and consent of the Senate, shall appoint
    the judges of the Supreme Court.'' The debates make clear that
    while the President had the power to nominate, the Senate still
    had a central role. Governor Morris of Pennsylvania described
    the provision as giving the Senate the power to appoint the
    judges nominated to them by the President. And the Convention,
    having repeatedly rejected the proposals that would lodge
    exclusive power to select judges to the Executive Branch, could
    not possibly have intended to reduce the Senate to a rubber
    stamp role.
        It is important that Americans understand what our founding
    fathers deliberated, what they believed, what they thought they
    were achieving with the power of the United States Senate not
    to be a rubber stamp for the presidency, and they also expected
    advice and consent.
        The letter to the Senate leaders by freshman Senators
    emphasizes their concerns about the state of the judicial
    nominations and confirmation process. It is clear that all of
    us in the Senate have concerns, but the letter, goes on to say
    that the judicial confirmation process is broken and needs to
    be fixed. Many Democratic Senators, however, feel that the part
    of the process that is broken is the nomination process: The
    Constitution gives the Senate the power of ``advice and
    consent''. The Senate's role of advice and consent was
    fashioned to ensure that we can meet the responsibilities as a
    Nation. Our earliest predecessors in the first decade of the
    Senate's history rejected a rule providing for motions to close
    debate, any motions to close debate. For the rest of the
    history, our rules have provided that debate, which is the
    lifeblood of our power, cannot be easily cut short. For 111
    years unanimous consent was required to end debate interested
    United States Senate. You had to get unanimous consent. All
    Senators had to consent. That was unanimous for 111 years. For
    the next 58 years it was two-thirds, and now it is 60 that are
    required.
        We have had an amazing life experience for this country and
    when you review what the founding fathers had intended and
    expected and what the rules had shown, it is clear that it was
    the function of advice and consent. It was the involvement of
    the United States Senate in the consideration and voting of
    various nominees on it in this process, that has contributed to
    this experience. We should all take the time to review that,
    because it has been the experience in the United States when
    this process has worked. That is not the way it is working at
    the present time.
        Unfortunately President Bush has clearly demonstrated his
    intention to nominate judges who share the Administration's
    partisan, right-wing ideology. In his campaign for the
    presidency, he often said he would nominate judges in the mold
    of Justice Scalia and Justice Thomas, and that is exactly what
    he is doing. The 2000 election was very close, and the Senate
    is very narrowly divided as well, and it is no surprise that we
    are divided over the appointment of judges. President Bush has
    no popular mandate from the American people to stack the courts
    with judges who share his ideological agenda, and the Senate
    has no obligation to acquiesce in that agenda. We would be
    failing our responsibilities if we were just to be a rubber
    stamp. We certainly have no obligation to ignore or suspend our
    long-standing rules and become a rubber stamp.
        I am hopeful that today's hearing will clear up any doubts
    about this issue. I am eager to work with our Chair and our
    other members to go back to the times that our founding fathers
    anticipated, where there would be the full kind of
    consideration in working with the Senate, as the founding
    fathers intended, and that we would move through a process
    where we would have the ample examination of the qualifications
    of the nominees and then the debate, and we would reach a
    conclusion and a decision.
        I appreciate the Chairman having these hearings, and
    hopefully, the American people will better understand all of
    our responsibilities as well as the process that has been used
    in the past, what our founding fathers intended and what is
    really important in terms of ensuring that we have an
    independent judiciary that is worthy of our founding fathers.
        I thank the Chair.
        [The prepared statement of Senator Kennedy appears as a
    submission for the record.]
        Chairman Cornyn. Thanks, Senator Kennedy.
        Senator Hatch, Chairman of the Judiciary Committee as a
    whole cannot be here today, but he would like to have his
    statement entered into the record regarding the history of
    judicial nominees during the first Bush and Clinton
    administrations from his perspective, and without objection,
    that will become part of the record.
        I know Senator Specter had a pressing engagement. As the
    senior Senator I was going to recognize him first, no
    disrespect to Senator Schumer. I see Senator Hatch here, if I
    may withhold a second.
        Senator Hatch said he would withhold any further statement
    than his written statement as part of the record.
        [The prepared statement of Chairman Hatch appears as a
    submission for the record.]
        Chairman Cornyn. I would now like to introduce our first
    panel, and I know Senator Specter intends to return, but it is
    made up exclusively of Senators, and as I said, it is a
    bipartisan group, as it turns out, two Democrats and one
    Republican. I was going to apologize to Senator Specter about
    that, but in the interest of bipartisan approach to reform I
    think it is quite appropriate.
        I am pleased to have this distinguished group here today.
    They recognize, and I think by virtue of their recommendations
    for reform, that the current judicial confirmation process is
    broken, in need of repair. They each have proposals and very
    provocative and very interesting proposals, and that of course
    is exactly the point of what I hoped we would get to today, is
    different ideas about how we can find ourselves out of this
    wilderness and into the path or more productive, and still, as
    Senator Kennedy reminds us, a constitutional process of advice
    and consent, but one that does not result in obstruction, but
    does allow full debate of all the President's nominees in an up
    or down vote, and may the majority have its will.
        At this point I would like to ask Senator Schumer, who I
    know has written to the President and made a specific proposal
    to make any opening statement he would like. Senator Schumer,
    we are glad to have you here today.

     STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
                           STATE OF NEW YORK

        Senator Schumer. Thank you, Mr. Chairman. I very much
    appreciate the opportunity to sit on this side of the panel, am
    proud to be a member of the panel and will join you on the
    other side, time permitting, and also want to join my
    colleagues in saying that this is an important hearing, it is a
    timely hearing, and we all appreciate the courtesy which you
    have extended to all of us.
        I am always interested in words. You said this is a panel
    of Senators. I guess it is a panel of Senator right now. It is
    the first time I have been referred to as a group. But in any
    case, few other words are little more disconcerting. It is
    almost there is a dictionary here, a 1984 dictionary. I was
    listening to the words ``crisis,'' there is a crisis on the
    bench because of the vacancies. We have fewer vacancies now
    than we have had in 13 years. Where was all the crisis over the
    last decade when the President was of another party and judges
    were routinely held up? Again, there is such a double standard.
    I worry about it. If it was a crisis now with a 5.6 percent
    vacancy, then why was it not a crisis then?
        How about obstruction? Well, there is a brand new
    definition of ``obstruction'' of 123 judges that have been
    brought to the floor. 121 have been approved. In other words,
    the definition that some of my colleagues in the White House
    has of obstruction is you have to approve every one of our
    judges or you are an obstructionist. When I say to my
    constituents, they say, ``What is going on with the judges?''
    And I say, ``I voted for approximately I think it is, 113 out
    of 120,'' they say, ``Oh, never mind. You are doing fine. That
    seems to be a pretty good average to me.'' So this idea of
    obstruction is again taking language and twisting it. You have
    to believe that every single judge has to be approved by a
    President, and I will get into this later, who has made
    ideology far more of a standard in choosing judges than any
    President in history. I think words are being twisted.
        And finally, filibuster. First time there is a filibuster?
    Not so. It is the first time there has been a successful
    filibuster, but members on the other side of the aisle were
    tempted to filibuster Paez and Berzon when I was here. Senator
    Feingold mentioned a list of other filibusters. All of a
    sudden, now that the shoe is on the other foot, we are saying
    these are no good and we have to examine them. I am willing to
    examine them. I think that the title of this hearing,
    ``Judicial Nomination, Filibuster and the Constitution: When a
    Majority is Denied its Right to Consent'' is a bit loaded, but
    it is a good thing to debate. I think it is fine, and I am
    happy to debate it.
        So I would like to go back to the Constitution. Senator
    Kennedy's peroration there on the Constitutional Convention I
    think is a wise and good one, but let us go to the Constitution
    itself. Now, it is one thing to have a discussion regarding the
    constitutionality of filibusters, and I will discuss that in a
    minute. I think it is way off base. I have never heard before
    people suggesting that filibusters are unconstitutional, and
    again, the worst way to legislate is doing it on something so
    traditional as this, and something that has existed in the
    Senate for so long and separates the Senate as the ``cooling
    saucer'' from the House, words of, I believe it was, Madison or
    Monroe, whoever called us the ``cooling saucer'' when
    explaining it to Jefferson who thought the Senate was a bit too
    regal for American tastes when he came back from Paris, after
    seeing the Constitution written. But it is a whole other matter
    to suggest that the majority has a right to consent.
        I have poured over this little book when I saw the title of
    the hearing, this Constitution. I do not see anything in here
    about the right to consent for anyone, but certainly not the
    majority. As my colleagues well know, the framers wrote the
    Constitution in many ways to limit the majority's power. They
    were worried about regal power, King George. They wanted to
    make sure the President was not regal, was not king-like, was
    not monarch-like. They were also worried about, Alexander
    Hamilton described it, my own fellow New Yorker, as
    ``mobocracy.'' And they wanted checks. And in fact, the first
    thing they did after the Government, this great Government, it
    was called by the founding fathers, ``God's noble experiment.''
    I truly believe that still exists today. We are God's noble
    experiment. It is an amazing thing this democracy. The founding
    fathers were the greatest group of geniuses put together. They
    truly were a group. But this idea of majority power? Well,
    maybe we should hold hearings on the election of the President
    in the year 2000 or make that the second chapter in this. That
    was a majority vote. The electoral college, is that
    unconstitutional even thought it is in the Constitution,
    because it will deny a majority, as it did in 2002, the right
    to choose their President? Again, the selective nature of
    choosing words, the selective nature of talking about majority,
    when it fits your case, but ignoring it when it does not, nope,
    I do not think so.
        When you go back and read the debates of the Constitutional
    Convention you see the framers struggle to find the right
    balance of power. If anything, they leaned to the primacy of
    the Legislative Branch, not the President, in the selection of
    judges.
        I am going to skip all the detail here because I think
    Senator Kennedy went over it very, very well. So let us get
    into how we got to where we are and then I will talk about my
    proposal. Probably the most important thing I have written as
    Senator was an op-ed piece that said when judges are nominated,
    we ought to take ideology into effect, that we ought to look at
    their judicial philosophy, that that was not only our right but
    our obligation. Let me just say I have always had three
    criteria in the role I play in selecting judges in New York
    State. They are: excellence, legal excellence, moderation. I do
    not like judges too far right or too far left because they tend
    to want to make law rather than interpret law, and it was the
    founding fathers who said, none other than they, that judges
    should be interpreting the law, and those who have strong
    ideological disposition, tend to want to impose their views.
    The third is diversity. I believe the bench should mirror
    America, not the white males.
        Well, on one in three President Bush has done a good job. I
    think his nominees are by and large legally excellent. They are
    smart. They are scholarly. They are well rehearsed in the law.
    And he has done a good job on diversity. But it is on ideology,
    moderation, that I choose to differ with him. I believe that
    this President, far more than any other, even more than Ronald
    Reagan, chooses judges through an ideological prism, and then
    when he gets some small amount of resistance in the grand
    scheme of things from the Senate, instead of coming and meeting
    with us and advising and consenting, tries to change the rules,
    and that is not fair.
        Now, if you think ideology should not play a purpose, let
    us continue the constitutional history for a minute. In 1795
    Chief Justice John Jay was stepping down, and President
    Washington nominated John Rutledge as his successor. Before the
    Senate voted on Rutledge's confirmation, Rutledge gave a speech
    attacking the Jay Treaty as excessively pro-British, which at
    the time would have been sort of like a nominee today going out
    and giving a speech defending the French. The Senate had just
    recently ratified the Jay Treaty, and in their voting, it was
    the Jay Treaty that caused them to vote down the Rutledge
    nomination 14 to 10. The Senate at that time was composed of a
    majority of founding fathers. And therefore, it is obvious that
    they thought these type of issues were relevant. These are the
    people who wrote the Constitution, and so all this hue and cry
    that ideology should not be part of the consideration, that we
    should not try to look for judges, my case moderate judges, but
    you can look for any kind you want, that was not a majority, by
    the way. It was six, by the way. The majority was in 1790 when
    the Constitution first started, there were six members of the
    Senate who were members of the Convention. Three voted for
    Rutledge, three voted against. But here you had many of the
    founding fathers. Not a word was said that voting for the Jay
    Treaty was out of line.
        So in one fell swoop the Senators of that first Congress
    made clear that the political views, let alone judicial
    philosophy, are legitimately considered in this process. That
    is how it was for the first hundred and some odd years.
        What happened was--let us bring it up to more recent
    history--ideology began to recede in the selection of judges,
    and during the Truman and Eisenhower years there was not too
    much debate about them because there seemed to be a consensus.
    But for some reason, and it was probably not intended, the
    Court became very liberal, led by people who were not nominated
    as great liberals. Earl Warren, Republican Governor of
    California, Hugo Black, who had had a different past. He was
    from Alabama. I think he was a member or it was reputed he was
    a member of the Ku Klux Klan. And so a conservative movement
    started and said judges should not make law, that they were
    sort of coming up with their own ideas as opposed to
    interpreting the law. That was a conservative movement, and
    they called it ``let's go back to strict constructionist.''
        By the way, just parenthetically, I was in college at the
    time and I remember debating this issue, and even then I said,
    even though I agreed with a lot of what the judges were doing,
    that it was a bad idea to have judges make law, that it is the
    legislature that should make law.
        Ronald Reagan came in and he started nominating some very
    conservative judges. He started nominating conservative judges.
    But no one made much of a cry because the bench then was quite
    liberal, and if you go by a test of moderation, of balance, not
    within each individual but within the bench, it probably was
    good, it probably was good.
        But then as that began to continue, ideology began to be
    discussed under the table, and so Democratic Senators would
    vote against the Republican Senator, the stated reason not
    being they disagreed with the ideology, Democratic Senators
    voting against the Republican nominee, but rather because they
    looked back and found that he smoked marijuana in college. And
    then Republicans might vote against a Democratic nominee
    because he went to the movie shop and took out the wrong movie
    at the video shop, and the process became demeaning, and we
    really were not looking for the moral purity of these nominees.
    It was an excuse. It was a Kabuki game, but under the table it
    was all ideology, and people got upset with it. I would not say
    the Bork nomination fell into this category, but perhaps
    Clarence Thomas's did. He should have been debated strictly on
    ideology, on how his views were, whether he was moderate enough
    for the Court.
        In 1999 I sort of began talking to my colleagues and said
    we ought to bring this above the table. It is demeaning for the
    process to say, well, someone did some minor transgression in
    college, out with him. If that was really the issue, then we
    would have found Democrats and Republicans voting about evenly
    against the marijuana smoker or the video shop trespasser. They
    did not.
        So I think that that argument has now gained sway, and,
    yes, we are sort of at a deadlock, but this was not started by
    Democrats in the Senate. This was brought on because President
    Bush, as he said it in his campaign, he said he chooses to
    nominate people in the mold of Scalia and Thomas, who I think
    by most objective standards would not be moderate or
    mainstream, but they are at the far right end of the judicial
    nominees. Clinton did not do that much of that. He had a few
    liberal nominees, but by and large, his nominees were not ACLU
    attorneys or legal aid lawyers. They were prosecutors. They
    were law firm partners. Bush's nominees have had a hugely
    ideological cast, and we have no choice but to bring out what
    they had to say. Then when Miguel Estrada came up, he would not
    even say what his views were because I think he felt--I do not
    know this, but my view is that he felt, and his handlers felt,
    that if he said what he thought, he would not be nominated. So
    he either had to dissemble or had to avoid stating anything,
    which he did.
        That is when our caucus really got together and said enough
    of this, enough of this. It is demeaning to the process, to the
    advise and consent process, to have a nominee who will avoid
    every question. He said he could not answer certain questions
    generally on his views because it would violate Canon 5. Well,
    if I asked him how he felt about ruling on Enron versus the
    United States, he might violate Canon 5. But I asked his views
    on the Commerce Clause and how much an active role the Federal
    Government should have in regulating corporations. That is not
    a violation of Canon 5, and if it is, almost every nominee we
    have approved should not be on the bench because they violated
    Canon 5, because they have answered those kind of questions.
        So when Miguel Estrada refused to even answer questions and
    really eviscerate the advise and consent process, we said
    enough. And I will continue to oppose nominees that I think are
    way out of the ideological mainstream, as long as President
    Bush tends to nominate nominees who are not in balance in terms
    of the thinking of this country. That does not mean each
    nominee Homeland Security to be a right down the middle
    moderate, but if you are going to nominate some from the hard
    right, nominate a few who are a little more liberal to balance
    them. That is not happening.
        So we are deadlocked, we are deadlocked. And the deadlock
    will remain unless we can break through, and what I have tried
    to do in my proposal is to have a true compromise. I would
    prefer the President take ideology out of the process all
    together, but I do not think that is going to happen, and he
    made a campaign promise that he would not, so that is not going
    to happen.
        I proposed a compromise which I think is a down the middle
    and fair compromise to break through this deadlock. Senator
    Specter's proposal, I respect it, but it basically means that
    we will have to wave the white flag. It says the President's
    nominees, as I understand his proposal, will come to the floor
    after a period of time. And that would mean the President would
    not win 121 out of 123, but would win 123 out of 123. It is not
    good for the process. There should be advise and consent, and
    in fact, even when one party controls the presidency and both
    houses, the other party should be involved in the process. I
    think that is what the founding fathers intended when you read
    the Federalist Papers and commentary.
        So I have proposed a true compromise I think. The proposals
    that my friends have offered, sort of unilateral disarmament,
    we are not going to accept it, and we will be back where we
    have been to begin with.
        Let me go over what ours is. It is based on nominating
    commissions. They have worked in many States, and we would
    create nominating commissions in every State and every circuit.
    We would give the President and the opposition party leader in
    the Senate the power to name equal numbers of the members of
    each commission. We would instruct each commission to propose
    one name for each vacancy. The commission composed of half from
    one party, half from the other, would have to come together
    with one nominee. If they came together with two nominees, it
    would not work because the Republicans would propose one, the
    Democrats would propose another, and the President would just
    nominate the Republican one. Let them come together and propose
    one nominee. Not every nominee would be just a down the middle
    moderate. The commission might decide, we will nominate someone
    more conservative for this position, this vacancy, and then we
    will move and nominate someone a little more liberal for the
    next nomination, for the next vacancy.
        Barring the discovery of anything that disqualifies the
    person for service, both the President and the Senate would
    agree to nominate and confirm him or her. This would be a
    gentleman's agreement. There would be nothing written into law
    and the process could break down and the commission would not
    work any more and we would go back to the old constitutional
    safeguards. But this commission would indeed provide the
    necessary framework for compromise and avoiding the kind of
    animus that we have seen where each side feels that they are
    right and they are not giving in. It is a 50-50 proposition,
    and some people may not want that. It preserves balance while
    removing politics, partisanship and patronage from the process.
        Again, I want to thank you, Mr. Chairman, for holding this
    hearing. I think discussions like this are great. They are good
    for the health of the republic, whether we agree or disagree,
    and I look forward to continuing on this when we go to our
    second panel. Thank you.
        [The prepared statement of Senator Schumer appears as a
    submission for the record.]
        Chairman Cornyn. Thank you, Senator Schumer, and I too want
    to thank you for your enthusiastic articulation of your views
    of where you think the process has broken down. Needless to say
    there are those who disagree, but I agree that it is good to
    have that debate. In a moment I know Senator Specter is going
    to be joining us. he had a conflict so I want to make sure we
    accommodate him, and I know all of the Senators have a lot of
    conflicting time commitments.
        In the interest of completeness though, let me go ahead,
    and without objection, I will have made part of the record the
    response which I understand the White House has made today, May
    the 6th, 2003. I will just read sort of what I think the
    conclusion is here.
        Senator Schumer. I have not seen it yet, so I look forward
    to hearing it.
        Chairman Cornyn. We will make sure you get a copy. I just
    had one handed to me a moment ago.
        It says, ``The solution of the broken judicial confirmation
    process is for the Senate to exercise its constitutional
    responsibility to vote up or down on judicial nominees within a
    reasonable time after nomination, no matter who is President or
    which party controls the Senate.''
        Senator Specter, thank you for rejoining us, and I know you
    had a conflict in your calendar, and I am glad you are back,
    and without further ado, I would like to recognize you, please,
    for purposes of your opening statement.

    STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
                            OF PENNSYLVANIA

        Senator Specter. Thank you very much, Mr. Chairman. I had a
    commitment at 3 o'clock to meet with members of the
    Pennsylvania Rural Electrification Society, and it was a very,
    very important meeting. They were endorsing my candidacy for
    reelection.
        [Laughter.]
        Senator Specter. You will pardon me if I sit down for a few
    moments.
        At the outset I compliment the 10 freshmen Senators on a
    bipartisan basis for digging into this very important and very
    contentious issue, and I believe that coming to the Senate
    fresh, you observe as new Senators, only a short time after
    being citizens without being a Senator, still a citizen after
    being a Senator, but very close to the non-Senator ranks, what
    this appears to the American people, to see the bickering which
    has been going on. At the outset I attribute that bickering to
    both parties. When the Republicans were in control of the White
    House in the last 2 years of President Reagan's Administration,
    and all during President George Herbert Walker Bush's
    Administration, the Democrats had the Senate, there was a
    problem. When President Clinton was in office, a Democrat,
    Republicans controlled the Senate from 1995 through 2000, there
    was a very, very similar problem. And the problem has been
    exacerbated.
        When this hearing was organized, it is interesting to note
    that there was not any disagreement between the Chairman, a
    Republican, and the ranking member, a Democrat, all the way
    until you got to the title of the hearing. It took that far
    into the process, point one, to have the disagreement. And this
    is a subject that I have studied for many, many years. It is a
    little different being on this side of the table than it is on
    the Committee, and I have been on the Committee during my
    entire tenure in the Senate. This is the first time I can
    recollect being at the witness table since I testified before
    Senator John McClellan. That even predates Senator Hatch. Not
    much predates Senator Hatch, would not have predated Senator
    Thurman.
        [Laughter.]
        Senator Specter. But I was here in 1966 testifying about
    the impact of Miranda on the Philadelphia District Attorney's
    Office, so this is a new experience for me to be on this side
    of the table.
        The problems have existed when the Republicans control the
    White House and the Democrats the Senate, and conversely when
    the Democrats control the White House and the Republicans
    control the Senate, and it has become exacerbated in recent
    years. During the period from 1995, when Republicans controlled
    the Senate, till 2000, there were many worthy judicial nominees
    who were not confirmed with long, long delays, and finally we
    did get some confirmations, and Senator Hatch and I voted for
    Judge Paez and Judge Berzon. We never could come to agreement
    on Bill Landley, who was Assistant Attorney General in the
    Civil Rights Division, but that was a very contentious time.
    And when the Democrats took back over on the Senate after
    Senator Jeffords left the Republican Party, it was payback
    time, and the payback occurred, and it was exacerbated. When
    Republicans regained the Senate after the 2002 elections, the
    table stakes were raised very, very considerably when we have
    had the introduction of the filibuster. This is unprecedented
    for the so-called inferior court, lesser than the Supreme Court
    of the United States, to have a filibuster. The only occasion
    where there had been a filibuster was, as we all know, with
    Justice Abe Fortas, and that was a bipartisan filibuster, and
    that was a filibuster which involved the issue of integrity. So
    this was very, very different.
        It is my hope that we can use the old Latin phrase to
    restore the status quo, antebellum, to restore what had been
    prior to the time the war started, and the war has been going
    on for a very long time, and it is time to go back to what the
    status quo was before the war started.
        Sometime ago I circulated what I called ``the protocol.''
    This was in the days before the exacerbation with the
    filibuster, and the protocol articulated a proposal that so
    many days after the candidate was nominated, there would be a
    hearing in the Judiciary Committee, and so many days later
    there would be Committee action, and so many days later there
    would be floor action, all subject to delay for cause on a
    determination by the Chairman or the majority leader, subject
    to notification of the Ranking Member of the minority leader on
    the floor of the United States Senate. It was my proposal that
    if there was a strict party line vote, that that individual
    would go to the floor even though there was not a motion by a
    majority to send the nominee to the floor.
        There were precedents for that. When Judge Bork was
    defeated in Committee 9 to 5, he was sent to the floor. When
    Justice Thomas was tied in Committee and not enough votes,
    because it take a majority vote to go to the floor, Justice
    Thomas went to the floor. And there have been long complaints
    about matters being bottled up in the Judiciary Committee,
    going back significantly to civil rights issues, so that it
    seemed to me that if it was strict party line, that the matter
    ought to go to the floor.
        Now we have the unprecedented situation with the
    filibuster. There is just no basis for that in the more than
    200-year history of our republic, and I would suggest to my
    colleagues and everybody on the Judiciary Committee who is
    steeped in the lore of the law and steeped in the activities of
    judicial nomination and selection, that when we deviate from
    existing principles, we do so at our peril. If it was good
    enough for the confirmation of judges for more than 200 years,
    what has occurred to warrant the change? There is no doubt that
    partisanship in the United States Senate today is at a very,
    very high pitch, and the bitterness is at a very, very high
    pitch. And that does not enable us to do our jobs in the
    interest of the public, and the bickering is applicable on
    pretty much an even division in my opinion between Democrats
    and Republicans. I put my votes where my mouth is, as voting
    for many, many of the Democratic nominees when Republicans
    controlled the Senate, and fighting to get Berzon and Paez and
    Bill Landley and others confirmed.
        The confirmation process of Justice Clarence Thomas was the
    toughest one, most divisive one which I have seen in my tenure
    in the Senate. There may have been others. When Louis Brandeis
    was confirmed, it was very contentious, but I think that the
    confirmation process of Justice Thomas was as contentious if
    not more so than any nomination, judicial and otherwise in the
    history of the country, but there was no filibuster, no
    filibuster when Justice Thomas was up in 1991, just 12 years
    ago, and there were all sorts of maneuvers. There was a delay
    in the vote. There was an unwillingness of Professor Hill to
    come forward, as disclosed in the hearings. She had been
    assured that if she made a complaint against Justice Thomas,
    then Judge Thomas, that she would not have to testify. She
    ultimately did testify and those were very, very difficult
    hearings, very, very contentious floor debate, but there was no
    filibuster. And I think had there even been an occasion where a
    filibuster would have been expected that would have been it.
        So it is a little hard to see why suddenly we have come to
    a filibuster on Miguel Estrada, superbly qualified, Phi Beta
    Kappa, magna cum laude at Columbia, magna cum laude at Harvard
    Law Review, 15 cases in the Supreme Court, comes from a foreign
    country, barely knows English, from Honduras as a teenager,
    great American dream.
        The situation with Justice Priscilla Owen of the Texas
    State Supreme court, good credentials, a record you can quarrel
    with on issues of judiciary bypass, but in a different era
    there would never have been a serious challenge to her
    nomination.
        For more than 200 years the latitude has been accorded to
    Presidents on advice and consent, but suddenly the Constitution
    has been turned into advice and dissent. There are in the wings
    some nuclear proposals which may be reaching the floor, and I
    am not going to discuss them. They will await another day. But
    one line of exacerbation inspires another.
        As you said, Mr. Chairman, and again I compliment on your
    initiation of these hearings, it is time we made a new start,
    try to turn back the clock, status quo antebellum, going back
    to 1987, and trying to find a way, and it is my hope that
    perhaps the time will be ripe in the fall of 2004, when we are
    on the brink of a presidential election, at that time there may
    be some uncertainty as to who the next President will be, whose
    ox will be gored or the shoe will be on the other foot, so that
    we will have a system which will handle these matters with an
    established protocol, so many days regardless of what party
    controls the White House where the opposite party controls the
    Senate.
        Thank you for conducting these hearings, and thank you for
    giving me an opportunity to testify.
        Chairman Cornyn. Thank you Senator Specter for your
    contribution and your presence today and trying to help the
    Senate find a way out of this quagmire.
        I know that Senator Zell Miller, who was going to
    originally be a member of the panel, wanted to be here to
    personally address the Subcommittee, although he informed me
    earlier today that with great regret, he cannot be here in
    person, but for personal reasons, must remain in his home State
    of Georgia, but he has graciously provided the Subcommittee
    with a written version of the remarks he wanted to give today,
    and I would like to have his full statement become part of the
    record, and without objection, it will be.
        [The prepared statement of Senator Miller appears as a
    submission for the record.]
        Chairman Cornyn. I would like to just give a simple
    overview of what his proposal is and what I believe he would
    say, in general terms, if he were able to be with us here today
    in person.
        Senator Miller's proposal, it seems to me, strikes a
    balance and reconciles the tension between two principles at
    stake in today's discussion.
        First, the Senate's tradition of ensuring adequate debate
    and, second, the Constitution's Doctrine of Majority Rule for
    confirming judges. Senator Miller's Senate Resolution 85 would
    do this, first, by providing that the first cloture vote would
    remain at 60 votes, and then by providing that each subsequent
    cloture vote would require incrementally fewer votes in a
    series steps until we reached a rule for ending debate by 51
    votes; in other words, from 60 votes to 57 votes, to 54 votes,
    and then 51 votes for cloture.
        I mentioned Senator Miller's proposal, along with Senator
    Specter's and Senator Schumer's proposal, in an article that I
    published this morning in opinionjournal.com, which has already
    been made part of the record.
        Senator Miller, himself, published an article describing
    his proposal in the Wall Street Journal just 2 months ago, and
    without objection that editorial will also become a part of the
    record.
        We certainly cherish debate in the United States Senate
    because we want to ensure that every Senator has a chance to
    speak and that every argument that can be made in good faith
    will be made and is tested in the Senate and before the
    American people. But after a while, after the debate has run
    its full course, after everything has been said and everyone
    has said it, we must then respect the basic fundamental
    constitutional democratic principle of majority rule.
        Senator Miller, by the way, is the first to state that his
    proposal did not originate with him. His proposal is actually
    the same one introduced by Senators Tom Harkin and Joe
    Lieberman. Senators Harkin and Lieberman introduced the same
    proposal just as the Democrats were returning to minority
    status following the November 1994 elections.
        As Senator Harkin explained his proposal on the Senate
    floor back in 1995, ``the minority would have the opportunity
    to debate, focus public attention on a bill and communicate
    their case to the public. In the end, though, the majority
    could bring the measure to a final vote, as it generally should
    in a democracy.''
        As I previously pointed out, Senators Harkin and Lieberman
    have both stated their opinion that filibusters, when abused to
    distort the constitutional majority of the Doctrine of Majority
    Rule are unconstitutional. And so I will let the rest of
    Senator Miller's written statement, as well as his article,
    speak for itself and will not go any further on that point.
        I regret that he is not able to be here today in person,
    but at least his views, I know, will be made part of the
    record.
        Senator Feingold. Mr. Chairman?
        Chairman Cornyn. Senator Feingold?
        Senator Feingold. Mr. Chairman, I would like to ask to be
    put in the record a memo prepared at my request by the
    Congressional Research Service on the subject of filibusters
    conducted on treaties and other matters that require a two-
    thirds vote in the Senate.
        This memo shows that the filibuster has been used on
    numerous occasions to require extended debate on treaties,
    which the Constitution specifically provides must be approved
    by a two-thirds vote. Prior to 1917, of course, as Senator
    Kennedy pointed out, the Senate had no cloture rule. Thus, a
    single Senator could theoretically block a treaty through a
    filibuster. According to the theory advanced here today by a
    number of witnesses, that action would have been
    unconstitutional. After all, the Constitution is explicit that
    only a two-thirds vote is required to approve. Yet by extending
    debate, a single Senator essentially converted that requirement
    into a requirement of unanimity. Many of these treaties, of
    course, were ultimately approved. It seems to me the argument
    applies equally to any delay in approval caused by a
    filibuster.
        Of course, I disagree with the arguments made here today on
    the constitutionality of the filibuster, and I think the
    history documented in the CRS report shows that the Senate,
    over a very long period of its history, disagreed as well.
        Chairman Cornyn. Without objection, that document will be
    made part of the record.
        Now, let us move on to the second panel. I would like to
    invite the members of the second panel, a panel of
    constitutional and legal experts, to come to the table. While
    we are waiting for them to take their seat, I would like to
    take a moment to observe that several other individuals have
    asked to testify before the Subcommittee on this important
    subject. Not surprisingly, the current crisis in the judicial
    confirmation process has attracted significant public
    attention, and I would have liked to have given everyone a
    chance to testify in person here today, but of course time does
    not permit that.
        But many individuals and organizations have asked to have
    their written statements admitted as part of the record, and
    without objection, the following documents will be admitted as
    part of the record or be included as part of the record:
        First, a letter from Professor Linda Eades at the Southern
    Methodist University, Dedman School of Law, in Dallas, Texas;
        Second, a report of the American Center for Law and
    Justice, authored chiefly by that group's chief counsel, Jay
    Sekulow;
        Third, a legal analysis by the Concerned Women by America
    and other groups.
        And of course, without objection, we will leave the record
    open until 5 p.m. next Tuesday, May the 13th, in case others
    would like to submit their statements for the record. This is
    an important issue and an important debate, and I do not want
    to exclude anyone from the opportunity to participate in these
    discussions.
        We are pleased to have before the Committee six
    distinguished panelists to speak on these issues.
        First, Dr. John Eastman, who is professor of law at the
    Chapman University School of Law, specializing in
    constitutional law and legal history. He is also the director
    of the Center for Constitutional Jurisprudence, a public
    interest law firm affiliated with the Claremont Institute for
    the Study of Statesmanship and Political Philosophy. And I am
    pleased to say he has been called to testify before Congress a
    number of times by members on both sides of the aisle.
        Mr. Bruce Fein is a senior partner in Fein & Fein, a
    Washington, D.C., law firm, specializing in appellate and
    constitutional law. He is a nationally acclaimed expert on
    constitutional law, who previously served as associate deputy
    attorney general and general counsel of the FCC. Like Professor
    Eastman, Mr. Fein has been called to testify before Congress on
    numerous occasions and by members on both sides of the aisle,
    including, I believe, the ranking minority member of this
    Subcommittee.
        Professor Michael Gerhardt is the Hanson Professor of Law
    at William & Mary Marshall-Wythe School of Law, in
    Williamsburg, Virginia. In 2000, he authored a book of direct
    relevance to today's hearing, entitled ``The Federal
    Appointments Process.'' He previously served as special
    consultant to the White House Counsel's Office for the
    Confirmation of Justice Stephen Breyer. Professor Gerhardt has
    the distinction of being the only joint witness called to
    testify by members on both sides of the aisle before the House
    Judiciary Committee in its special hearing on the impeachment
    process in 1998.
        Ms. Marcia Greenberger is founder and co-president of the
    National Women's Law Center here in Washington, D.C. She is a
    nationally recognized expert on sex discrimination law and is
    no stranger to the politics of the judicial confirmation
    process.
        A graduate of the university of Pennsylvania, Ms.
    Greenberger has been recognized by ``Washingtonian Magazine''
    as one of the most powerful women in Washington.
        Ms. Greenberger, we are delighted to have you hear as well.
        Professor Steven Calabresi is professor of law at
    Northwestern University School of Law. He served as a Supreme
    Court law clerk and as an attorney and speechwriter in the
    White House and Justice Department during the Reagan and Bush
    administrations. He has written extensively on the numerous
    constitutional legal subjects dealing with the presidency and
    with separation of powers and has been published in the ``Yale
    Law Journal,'' the ``Stanford Law Review,'' and many other
    prestigious law journals.
        Finally, Dean Doug Kmiec is dean of the Catholic University
    Law School. I first met Dean Kmiec when he was at Pepperdine
    School of Law, and it is good to see you again.
        He is the co-author of one of the Nation's leading
    constitutional law case books and numerous articles on
    constitutional issues and the Federal courts. He has previously
    served as assistant attorney general for the Office of Legal
    Counsel at the Department of Justice, the office charged with
    providing constitutional legal advice to the President, the
    Attorney General, and the Executive Branch.
        I want to welcome the entire panel here today, and I know
    it is almost a criminally short period of time, but so we can
    cover each of your statements to start with, and then provide
    an adequate opportunity for the Subcommittee to ask questions.
        We will begin with opening statements of a mere 5 minutes
    before moving on to question-and-answer rounds.
        Professor Eastman, we can start with you, please.

    STATEMENT OF JOHN EASTMAN, PROFESSOR OF LAW, CHAPMAN UNIVERSITY
          SCHOOL OF LAW, DIRECTOR, CENTER FOR CONSTITUTIONAL
                   JURISPRUDENCE, ORANGE, CALIFORNIA

        Mr. Eastman. Thank you, Chairman Cornyn, and other members
    of the Subcommittee.
        We are here today, as we all know, to address a procedural
    tactic--the filibuster--that dates back at least to Senator
    John C. Calhoun's efforts to protect slavery in the old South
    and that, until now, was used most extensively by Southern
    Democrats to block civil rights legislation in the 1960's.
        In its modern embodiment, the tactic has been termed the
    ``stealth filibuster.'' Unlike the famous scene from ``Mr.
    Smith Goes to Washington,'' where Jimmy Stewart passionately
    defends his position until collapsing on the floor, the modern
    practitioners of this brigand art of the filibuster have been
    able to ply their craft largely outside the public eye, and
    hence without the political accountability that is the hallmark
    of representative Government.
        I am thus very pleased to be here today to help you and
    this Committee in your efforts to ``ping'' this stealth
    filibuster and make it not only less stealthy, but perhaps
    restore to it some nobility of its original purpose.
        Let me first note that I am not opposed to the filibuster
    per se, either as a matter of policy or constitutional law. I
    think the Senate, within certain structural limits, is
    authorized to enact procedural mechanisms such as the
    filibuster, pursuant to its power to adopt rules for its own
    proceedings.
        I think that by encouraging extensive debate, the
    filibuster has, in no small measure, contributed to this body's
    reputation as history's greatest deliberative body. But I think
    it extremely important to distinguish between the use of the
    filibuster to enhance debate and the abuse of the filibuster to
    thwart the will of the people, as expressed through the
    majority of their elected representatives.
        The use of the filibuster for dilatory purposes is
    particularly troubling in the context of the judicial
    confirmation process, for is thwarts not just the majority in
    the Senate and the people that elected that majority, as any
    filibuster of ordinary legislation does, but it intrudes upon
    the President's power to nominate judges and ultimately
    threatens the independence of the judiciary itself.
        Before I elaborate on each of these points, let me offer a
    bit by way of a family apology of sorts. One of the more
    notorious of the Senate's famed practitioners of the filibuster
    was my great uncle--it is actually my great-great uncle--Robert
    LaFollette, a candidate for President in 1924 and a long-time
    leader of the progressive movement whose members took great
    pride in thinking that they could provide greater expertise in
    the art of Government than anything that could be produced by
    mere majority rule. Because this ideology of the Progressive
    Party was so contrary to the principle of consent of the
    governed articulated in the Declaration of Independence, I have
    always considered Senator LaFollette somewhat of a black sheep
    in our family. But I can at least take some family pride in the
    fact that one of his filibusters--
        Senator Feingold. Mr. Chairman, this direct attempt to
    incite the Senator from Wisconsin will not be tolerated. I
    invite you to come to Wisconsin and make those remarks about
    Robert M. LaFollette, perhaps outside of a Packer game.
        Chairman Cornyn. Senator Feingold, we appreciate your self-
    restraint.
        [Laughter.]
        Mr. Eastman. I can at least take some family pride in the
    fact that one of his filibusters, the temporarily successful
    effort to block Woodrow Wilson's widely popular proposal to arm
    merchant ships against German U-boats in World War I led the
    Senate to restrict the filibuster power by first providing for
    cloture.
        Unfortunately, I believe that those efforts did not go far
    enough. More needs to be done to ensure that the debate-
    enhancing aspect of the filibuster cannot be misused to give to
    a minority of this body an effective veto over the majority.
        With that end in mind, I want to quickly make four points.
        First, it is important to realize that the use of the
    filibuster in the judicial confirmation context raises
    structural constitutional concerns not present in the
    filibuster of ordinary legislation.
        Second, these constitutional concerns are so significant
    that this body should consider modifying Senate Rule XXII so as
    to preclude the use of the filibuster against judicial nominees
    or at least ensure that ultimately the filibuster cannot give
    to the minority of this body a veto over the majority.
        Third, any attempt to filibuster a proposal to change the
    rules itself would be unconstitutional, in my view.
        And, finally, I believe that if this body does not act to
    fix this problem to abolish what has essentially become a
    supermajority requirement for confirming judicial nominees, it
    could be forced to do so as a result of litigation initiated by
    a pending nominee or even by a member of this body whose
    constitutional vote has been diluted by the new use of the
    filibuster.
        As we all know, the President nominates, and by and with
    the advice and consent of the Senate, appoints judges of the
    Supreme Court and of the inferior courts. Contrary to the
    testimony of Senator Schumer earlier and the comments by
    Senator Kennedy, this was not designed to provide a co-equal
    role in the confirmation process to this body. The primary
    role, as Joseph Story himself acknowledged in his
    Constitutional Treatise, was given to the President, with a
    limited check in this body to make sure that the President did
    not abuse that power.
        Ultimately, it becomes clear that one of the few ways that
    we have to control the unelected judiciary, which was designed
    specifically to be countermajoritarian is, over time, through
    the ability of the President, elected by the citizenry of this
    country, to appoint judges who agree with the political views
    of the country.
        There are two principal checks on the judiciary. One is the
    power of impeachment for judges that fail to act in good
    behavior. That has not been an effective check since Samuel
    Chase was impeached in the presidency of Thomas Jefferson. But
    the other check, the only viable check, is that, over time, the
    electorate, by choosing Presidents, can have an impact on the
    outlook of the judiciary. To assign to this body a role that
    would guarantee that that cannot happen, even after the
    President has been elected and a majority in this body has
    expressed their willingness to confirm his nominees, is in a
    sense to thwart, not just the majority of this body, but the
    majority of the people in the Nation as a whole.
        Let me turn to a couple of options that we might have very
    quickly.
        Chairman Cornyn. I am sorry to interrupt you, but,
    unfortunately, we need to hold the opening statements to 5
    minutes, and hopefully we can address some of those on
    questions, and certainly your complete statement will be made
    part of the record.
        I apologize for the short amount of time allotted.
        [The prepared statement of Mr. Eastman appears as a
    submission for the record.]
        Chairman Cornyn. Mr. Fein?

      STATEMENT OF BRUCE FEIN, ESQ., FEIN & FEIN, WASHINGTON, D.C.

        Mr. Fein. Thank you, Mr. Chairman, and members of the
    subcommittee. I think the comments that you have made and those
    of the previous witnesses were very enlightening and focused
    attention on what the critical problem is and perhaps differing
    conceptions of what the role of the Senate is in confirming
    Federal judges.
        I do not think we ought to delude ourselves that what we
    are witnessing today is not a dress rehearsal for the first
    nominations by President Bush for vacancies of the Supreme
    Court that are likely to unfold in June or July, and our focus
    and concern ought then to be equally then raised because this
    is not simply a dispute over Circuit Court confirmations.
        I think that the issue of whether or not there have been
    filibusters about judges in the past that are equivalent to
    what is happening with regard to Miguel Estrada and Priscilla
    Owen are somewhat beside the point. It is clear that simply
    longevity of a practice is not sufficient to save it from
    unconstitutionality, and I will refer to five prominent cases
    which I believe demonstrate that in spades.
        You may recall the U.S. Supreme Court in INS v. Chadha held
    unconstitutional the legislative veto that had flourished in
    Congress over many, many decades, over 60 years. The United
    States Supreme Court in United States v. Meyers eliminated the
    power of the Senate to require its consent for the President to
    remove an executive officer. That was the practice that emerged
    in the Tenure of Office Act in 1868, when the radical
    reconstruction Congress was opposed to then-President Andrew
    Johnson; again, a practice of well over 80 years that was held
    unconstitutional.
        Erie Railroad v. Tompkins, a case that we all study in law
    school, where Justice Brandeis overturned some 80 years of
    Federal common law as being an unconstitutional usurpation of
    power.
        The Congress of the United States, for over a century,
    thought itself empowered to exclude persons properly elected
    beyond disqualifying from age, residency and citizenship. In
    Powell v. McCormack, the United States Supreme Court held that
    unconstitutional.
        A political patronage that was inherited from the outset of
    our Constitution was held unconstitutional in Elrod v. Burns.
    So simply because something might have been done in the past,
    certainly does not require that it be continued in the future
    on the theory that if it was unconstitutional then, it in a
    sense gets grandfathered past Supreme Court review and acquires
    constitutionality through age.
        I would also like to address one of the issues that was
    raised, I believe, by one of the previous witnesses about
    moderation being so critical here. And also the idea that a
    critical element of the reason for Senate review of
    presidential nominations in the judiciary was to ensure
    moderation in the bench.
        Well, moderation is in the eye of the beholder, and I think
    it might be useful to examine those who opposed Justice Louis
    Brandeis when he was nominated in 1916. He was thought to be
    radical. That included the then-president of the American Bar
    Association, Elihu Root; former President William Howard Taft;
    former Attorney General George Wickersham; former NAACP head,
    Moorfield Story; the head of Harvard University, Lawrence
    Lowell; the Wall Street Journal, the Nation, and the New York
    Times all said Louis Brandeis was a radical.
        Now, as we all know, Brandeis has authored jurisprudence
    that still thrives today. Perhaps a third of major First
    Amendment law, right of privacy law, and Fourth Amendment law
    is from the pen of Louis Brandeis, and he was thought, I think
    under the standard of moderation that was expounded earlier, to
    be too radical and kept off the bench.
        I think that it is also unwise to search for intellectual
    tidiness on filibustering rules. I think its application to
    judges is different than its application to legislation or to
    treaties. We have to think about each case and ask the purpose
    of the Senate role or the Senate requirement of majority or
    supermajority and ask whether it would be undermined if you had
    a filibuster rule. It may be different with judges, as opposed
    to legislation.
        I think if you look at the Federalist Papers and the
    Constitutional Convention of the Founding Fathers' reason for
    entrusting a confirmation role to the Senate, the filibuster
    for purposes of screening for ideology is improper.
        Hamilton explained it was to screen for competence,
    cronyism and corruption. That was the reason. And, in fact, he
    goes on in Federalist 76 to explain precisely why, as Senator
    Kennedy pointed out, the Constitutional Convention shifted the
    appointment power from the Senate to the President.
    Collectivities have a tendency to search for the lowest common
    denominator because, in some sense, there is an
    irresponsibility that goes with anonymity and voting in a
    collective.
        The President was given power to appoint because he was
    accountable; he had an incentive to search for the best and the
    brightest and strongest. The Senate could deny confirmation if
    there was some kind of taint in the process. But otherwise it
    was thought, in the long run, to produce the most enlightened
    and strong judiciary, entrusted with checking the legislature
    and the executive abuses, that the President's nominee should
    prevail.
        I also think that in this case, with regard to Miguel
    Estrada and Priscilla Owen, it is exceptionally worrisome that
    we have an effort by a minority of the Senate to block
    confirmation. I know that one of the Senators who had testified
    previously held a hearing all day on how he thought it was
    outrageous that the Supreme Court and other judges were saying
    Congress was exceeding its power under the Commerce Clause in
    Section 5 of the Fourteenth Amendment, and he thought Congress
    should be totally unchecked on those bases, and there should
    not be any judicial review.
        So I think, in this case, the purpose of the filibuster is,
    in fact, to undermine a central component of separation of
    powers, the jewel in the crown, by having a judiciary to check
    an excess of Congress.
        Thank you, Mr. Senator.
        Chairman Cornyn. Thank you, Mr. Fein.
        Professor Gerhardt?

    STATEMENT OF MICHAEL GERHARDT, HANSON PROFESSOR OF LAW, WILLIAM
               & MARY LAW SCHOOL, WILLIAMSBURG, VIRGINIA

        Mr. Gerhardt. Thank you, Chairman Cornyn, and thank you,
    other members of the Subcommittee. It is a great honor to be
    here. There is nothing I consider more important for me to be
    than to be of service to this institution and to follow my
    fellow panelist, John Eastman's, suggestion. I want to just
    note, personally, that I was born in Wisconsin, my mother lives
    in Texas, and I have visited Utah several times.
        [Laughter.]
        Mr. Gerhardt. I had the privilege of meeting Senator Hatch
    for the first time at the Utah Bar Convention. So I have
    covered my bases.
        Chairman Cornyn. Professor Gerhardt, will you check your
    button there to make sure it is turned on.
        Mr. Gerhardt. And that is pretty much all I had to say,
    Senator.
        [Laughter.]
        Mr. Gerhardt. With all due respect, I would not want to
    review here, in my brief appearance right now, the ample
    support for the constitutionality of the filibuster. I have
    covered that in my statement and would be happy to answer
    questions on it later.
        I want to focus my remarks, briefly, on the major arguments
    against the constitutionality of the filibuster. One of the
    most common I think we will hear today, and that is the
    argument that the filibuster violates majority rule in the
    Senate. This argument is predicated on reading several
    provisions of the Constitution as establishing majority rule as
    a fixed principle to govern Senate voting, with the obvious
    exceptions of the specific instances in which the Constitution
    imposes supermajority voting requirements.
        Yet, a sensible reading of these provisions does not
    establish majority rule within the Senate as a fixed principle
    in all but a few instances. At most, these provisions establish
    majority rule as the default rule in the absence of any other
    procedure.
        The filibuster leaves this default rule intact. Rule XXII
    does not require 60 votes to adopt a law, it requires 60 votes
    to end debate. Passing a bill or confirming a nomination still
    requires a simple majority. Moreover, the clause that a
    majority is a quorum creates the basic rule for when each
    chamber may do its business. That same clause, by the way,
    shows how the framers could well provide for a majority or
    impose a majority, a legislative majority, when they wanted to,
    but they failed to do it for the internal procedures of the
    Senate.
        Some opponents of the filibuster insist, nevertheless, the
    majority rule applies with respect to not only legislation, but
    also nominations. The argument in part is that the Appointments
    Clause entitles the Senate to give its advice and consent to
    presidential nominations and that the filibuster bars a
    majority of the Senate from exercising this prerogative.
        The argument is that a majority of the Senate is
    constitutionally protected in exercising its discretion whether
    to hold a final vote or not. If it is disposed to hold one, no
    minority can stand in its way. I think there are problems with
    this argument.
        The first difficulty is that it is predicated on a flawed
    reading of the Appointments Clause. The Appointments Clause
    sets forth the necessary conditions for someone to be appointed
    as an Article III judge. One of these conditions is nomination
    by the President, another is confirmation by the Senate.
    Confirmation is achieved by a majority vote of the Senate.
    Thus, the clause sets forth the prerequisites for a lawful
    presidential appointment. It says nothing about the specific
    procedures applicable in confirmation proceedings or about how
    someone may be denied confirmation.
        Second, the suggested construction of the Appointments
    Clause would lead to absurd results. For one thing, I think, it
    would eliminate the committee, particularly the Senate
    Judiciary Committee, as a gatekeeper for nominations. Moreover,
    the majority leader presumably would be required to forward to
    the Senate floor each nomination that the President makes,
    regardless of what happened in the Committee.
        In addition, this reading of the Appointments Clause would
    render unconstitutional temporary holds which have been used
    routinely to delay final consideration of legislation and
    nominations. Temporary holds near the end of legislation can
    often be fatal; delay a nomination just long enough near the
    end of a legislative session, time runs out for the Senate to
    act and the nomination lapses. Such lays would be intolerable
    on this reading of the Appointments Clause.
        Reading the Appointments Clause as entitling, or
    empowering, a majority of the Senate to render final votes on
    presidential nominations would mean there were constitutional
    violations every time nominees failed to receive final votes on
    their nominations.
        Let me note that there is only one Appointments Clause, and
    therefore what we are talking about is majority rule would
    apply with respect to every nomination, not just every judicial
    nomination, but every nomination, and I do not hear that
    argument being urged today.
        The constitutional violation presumably arises when a
    majority is willing, but unable, for some reason, to confirm a
    nominee, but it is unclear what procedures the Constitution
    requires to determine a majority's willingness to vote prior to
    the final vote.
        It would be absurd to think that the Appointments Clause
    requires the majority to vote twice. Moreover, a reading of the
    Appointments Clause as entitling a majority vote on a
    nomination when it is so disposed, leaves unclear whether
    Senators could change their minds once they have initially
    signalled their willingness to confirm someone. There have
    certainly been instances in the past when Senators have
    indicated their inclination to vote one way, but voted
    differently in the final vote.
        I would just point out the numerous times in which this
    rule would have been violated not just during the Clinton
    administration, but before that. I could not begin to count how
    many instances in which it might have been violated, and so it
    is a good time for me to say my time has run out.
        [The prepared statement of Mr. Gerhardt appears as a
    submission for the record.]
        Chairman Cornyn. Thank you very much, Professor Gerhardt.
        Ms. Greenberger, we would be pleased to hear from you now.

    STATEMENT OF MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S
                      LAW CENTER, WASHINGTON, D.C.

        Ms. Greenberger. Thank you, Senator Cornyn.
        I am Marcia Greenberger, co-president of the National
    Women's Law Center, which for 30 years has been working on the
    core legal rights that affect women and their families in this
    country. With me is Center Vice President Judith Appelbaum. We
    appreciate very much your invitation to appear here today, and
    like the other panelists today, recognize the extraordinary
    importance of the hearing on the topic before us.
        The Federal courts play an extraordinarily important,
    indeed, a critical role in giving life and meaning to the
    rights and principles enshrined in the Constitution and the
    laws enacted by Congress, and because of the profound impact on
    the lives of all Americans, it is very important to look at the
    kinds of problems that are being alleged exist with respect to
    the judicial confirmation and appointments process and the
    solutions.
        Senator Cornyn, you have described the judicial
    appointments process as broken and needing to be fixed. With
    all due respect, while I agree there is a problem, I differ on
    what it is and what should be done about it.
        The problem is not that the Senate is giving careful
    scrutiny to judicial nominations and that Senators are willing
    to engage in a filibuster pursuant to the Senate rules to stop
    nominations to which they have especially strong objections,
    including objections based on the nominee's substantive views
    on important legal issues; these Senators are exercising the
    advise and consent responsibility the Constitution gives to the
    Senate and is what the Senate has done since the beginning of
    the Republic, including with respect to the first nominee to
    the Supreme Court in the very beginning days of the Republic in
    looking at judicial philosophy.
        We have heard from some of my panelists a denigration of
    the role of the Senate in this advise and consent function.
    With the limited time now, I will not go into that, but suffice
    it to say that it was not that the shift of the appointment
    power went to the President, as I think one of my panelists
    just said, it was the shift of the nomination power to the
    President, the advise and consent role was retained by the
    Senate and of course every Senator is elected by
    constituencies, just as the President is, and that was
    reflected in the constitutional balance of authority and power
    in this important nomination process.
        The problem as we see it rather is that the administration
    is sending to the Senate nominees who provoke controversy and
    delay. Instead of consulting with Senators and coming up with
    consensus candidates, respecting the advise function of the
    Senate's advise and consent constitutional responsibility, what
    we have seen is individuals with extreme views who are
    affecting critical legal principles, and in the Estrada case,
    depriving the Senate of sufficient information about the
    nominee's views on these issues.
        This approach inevitably produces vehement opposition,
    polarization, and, yes, in these two cases, out of the 121
    nominees who have been confirmed to date, filibusters. Hardly a
    crisis within this context, it is fair to say, as has been
    pointed out with the current vacancy rate just now at 47, the
    lowest in 13 years. We do not like much of what is happening
    with this process, but it is hard to say that there has been a
    crisis. In fact, there has been, thanks to what has happened
    under Senator Leahy's watch and now Senator Hatch, a movement
    of many nominees through the confirmation process.
        I do, because the names of Priscilla Owen and Miguel
    Estrada have come up, want to say, briefly, in the case of
    Priscilla Owen, nominated to the Fifth Circuit, her judicial
    record has shown that, as a Supreme Court judge on the Texas
    Supreme Court--a court, Senator Cornyn, I know you are very
    familiar with---her then fellow judge, Alberto Gonzales, wrote
    that her position in one case constituted an unconscionable act
    of judicial activism because it construed a State law in a way
    that would create hurdles for the right to choose that were not
    in the words of the statute. Strong language, and from the man
    who is now White House counsel.
        In the case of Miguel Estrada, there have been concerns
    about the rules of the Judiciary Committee not being followed
    by key answers to questions not being given, by key pieces of
    information that are necessary for the Senate to discharge its
    advise and consent responsibility not being provided.
        There are other very controversial and troublesome nominees
    coming up before this Judiciary Committee. I do not have time
    now to go through some of the deep concerns with Carolyn Kuhl,
    who during her tenure in the Government urged the Supreme Court
    to overturn Roe v. Wade and to allow Bob Jones University to
    retain tax-exempt status despite its policy of racial
    discrimination.
        I will say, also, with Charles Pickering, nominated to the
    Fifth Circuit, he called for a constitutional amendment banning
    abortion and as a Federal judge tried to pressure the Justice
    Department to drop a charge against a convicted cross-burner,
    to avoid having the defendant serve the mandatory minimum
    sentence.
        These are highlights of records that have many more details
    that are troublesome.
        J. Leon Holmes, just reported out of the Judiciary
    Committee in a highly unusual procedural manner, nominated to a
    district court seat, compared the pro-choice movement to Nazi
    Germany, argued that wives must subordinate themselves to
    husbands, said that there need not be a right of rape victims
    to secure an abortion because basically they do not get
    pregnant.
        These are extremely problematic nominees, and it is exactly
    the role of the Senate to give not only its advice, but when
    they are actually nominated to withhold its consent when they
    have extreme records that are so problematic.
        I also want to say that there are a nominees who have
    ultimately been confirmed and not been filibustered, even
    though the ``no'' votes went over that 41-vote threshold.
    Jeffrey Sutton was confirmed with 41 ``nay'' votes; Judge
    Tymkovich, now in the Tenth Circuit, 41 ``nay'' votes; Judge
    Shedd, Fourth Circuit, 44 ``nay'' votes; D. Brooke Smith, Third
    Circuit, had 35 ``nay'' votes.
        I bring that to this Subcommittee's attention because these
    kinds of nominees are divisive, they are problematic, they
    raise real issues and dangers with respect to real people's
    constitutional rights, but they raise an even bigger problem
    and challenge, and that is whether or not the American public,
    when it goes before a judge, will be able to have the
    confidence that that judge is going to be open-minded, and that
    is what we are really talking about when we are talking about
    respecting the advise role, as well as the consent role, of the
    Senate.
        We should not be fostering and thinking about solutions
    that ram nominees through with artificial deadlines that do not
    allow for serious study and review of their records, that
    change filibuster rules that have been in place for decades--
        Chairman Cornyn. Ms. Greenberger, if you would please wrap
    up your comments. We will make any statements you have a
    complete part of the record, but we have gone over the allotted
    time.
        Ms. Greenberger. I appreciate that. Thank you.
        And so I would, in wrapping up, say that rather than
    continue along the line of radical changes, of rules that have
    been in place for decades and even centuries, rather than
    changing the rules of the game as they have worked to protect
    the public over time, what is really the most important change
    would be to look for comity, to look for the kinds of nominees
    that can get the kind of strong backing that will give the
    public the confidence that there is a judiciary that is open-
    minded and ready to give fair justice to whoever walks in the
    door. Thank you.
        [The prepared statement of Ms. Greenberger appears as a
    submission for the record.]
        Chairman Cornyn. Thank you.
        Dean Kmiec?

    STATEMENT OF DOUGLAS KMIEC, DEAN OF THE COLUMBUS SCHOOL OF LAW,
          THE CATHOLIC UNIVERSITY OF AMERICA, WASHINGTON, D.C.

        Mr. Kmiec. Senator, thank you for allowing me to appear
    before this body. This is an important hearing. I liked the way
    you described it at the beginning, a ``fresh start.'' I like
    the fact that it originated as well with a group of bipartisan
    freshmen Senators who come to this body and recognize that for
    a good long time we have been paralyzed over this subject.
        To try and facilitate a fresh start, let me suggest that it
    is useful, as we consider this discussion, to separate out four
    things. All four have been present here in the discussion
    already this afternoon.
        First, is the issue of whether or not it is appropriate to
    consider ideology in the appointment of an individual to the
    Federal bench. This has been raised by Senator Schumer. It has
    been raised most recently by my co-panelist here, Marcia
    Greenberger. I do not believe that is an issue that is going to
    be particularly helpful this afternoon in getting us to the
    fresh start.
        I think, as a constitutional matter, the President has
    complete authority to consider ideology if he wishes. As a
    constitutional matter, I believe the Senate has no textual
    restraint to preclude it from doing so. Whether it is prudent
    to do so after someone has been proven to be a person of
    integrity and competence I think is another question, but I
    think that issue is good to be put aside.
        The second issue that I think will not help get us to the
    fresh start is whether or not we debate the particular
    qualities this afternoon of particular nominees. There are some
    excellent nominees, some of which have been, in my judgment,
    obstructed both in the Committee and now on the floor of the
    Senate. But other hearings have been held on that topic, and
    they need not be held this afternoon.
        A third issue, and one that is interwoven with this topic,
    is the issue of the filibuster and whether that is
    constitutionally appropriate and specifically whether it is
    constitutionally appropriate to apply it to judicial
    nominations.
        Professor Gerhardt, in his testimony, addressed this
    question. He also addressed it in his scholarly work in his
    book on appointments that was published several years ago, and
    I would borrow from what he said in his book, more than what he
    said in his testimony this afternoon. Specifically, when you
    have a constitutional text that in seven specific places
    envisions a supermajority, to construct a supermajority outside
    the constitutional text in other places is, I think, a
    problematic practice and perhaps one that is fraught with
    constitutional questions that are worthy of this body.
        But it is really the fourth question that I think poses the
    most serious constitutional difficulty, and that is the
    constitutional entrenchment of supermajority rules, and the
    reason this is so serious is because it goes directly to the
    heart of whether or not you, Senator, who have been elected
    newly to this body, and your fellow freshmen Senators, who have
    the confidence of your constituencies, will, in fact, be given
    the opportunity to fully represent the people from the State of
    Texas and the other States where the new Senators are from.
        We currently have in play a process where carryover rules,
    rules that have not been adopted by the present Senate, are
    requiring a supermajority to, in effect, approve and confirm a
    judicial nominee. As you know, to close debate, it requires 60
    votes; in order to amend the rules, it requires 67.
        These are carryover provisions that have not been adopted
    by this body and by virtue of that, they pose the most serious
    of constitutional questions because, as I quote, Senator, the
    Supreme Court has long held the following:
        ``Every legislature possess the same jurisdiction and power
    as its predecessors. The latter must have the same power of
    repeal and modification which the former had of enactment,
    neither more nor less.''
        I recommend that we focus our attention here this afternoon
    on how a fresh start can emerge, largely by having the Senate
    Rules Committee put in front of the full Senate for a majority
    of Senators to decide up or down, whether or not they want a
    Supermajority requirement for judicial nominees. I suspect they
    do not want that, and if that is the case, that will move us to
    a place where I think we can find agreement.
        Thank you, sir.
        [The prepared statement of Mr. Kmiec appears as a
    submission for the record.]
        Chairman Cornyn. Thank you, Dean.
        Professor Calabresi?

     STATEMENT OF STEVEN CALABRESI, PROFESSOR OF LAW, NORTHWESTERN
                UNIVERSITY LAW SCHOOL, CHICAGO, ILLINOIS

        Mr. Calabresi. Thank you, Senator Cornyn. I very much
    appreciate the opportunity to appear before the Committee
    today.
        The people of the United States have just won a great
    victory in the war to bring democracy and majority rule to
    Iraq. Now, it is time to bring democracy and majority rule to
    the Senate's confirmation process. A determined minority of
    Senators has announced a policy of filibustering indefinitely
    highly capable judicial nominees such as Miguel Estrada and
    Priscilla Owen. By doing this, the Senators are wrongly trying
    to change two centuries of American constitutional history by
    establishing a requirement that judicial nominees must receive
    a three-fifths vote of the Senate instead of a simple majority
    to win confirmation.
        The U.S. Constitution was written to establish majority
    rule. The historical reasons for this are clear. A major defect
    with the Constitution's precursor, the Articles of
    Confederation, was that it required supermajorities for making
    many important decisions. The Framers deliberately set out to
    remedy this defect by empowering Congress to make most
    decisions by a simple majority. The only exceptions to this
    principle are in seven expressed situations where a two-thirds
    vote is required.
        Each House of Congress does have the power by majority vote
    to establish the rules of its proceedings, but there is no
    evidence this clause was originally meant to authorize
    filibusters. From 1789 to 1806, the Senate's rules allowed for
    cutting off debate by moving the previous question, a motion
    which required only a simple majority to pass.
        The filibuster of legislation did not originate until 1841,
    when it was employed by Senator John C. Calhoun to defend
    slavery in an extreme vision of minority rights. Calhoun was
    called a filibusterer--from a Dutch word for pirate or as we
    would say today, ``terrorist,'' because he was subverting
    majority rule.
        From 1841 to the present, the principal use of a filibuster
    has been to defend Jim Crow laws oppressing African Americans.
        Now, for the first time in 214 years, a minority of
    Senators are seeking to extend filibustering from legislation
    to the whole new area of judicial nominees, nominees who they
    know enjoy the support of a majority of the Senate. This is a
    bad idea for three reasons:
        First, such filibusters weaken the power of the President,
    who is one of only two officers of Government who is elected to
    represent all of the American people;
        Second, filibusters of judges undermine judicial
    independence, by giving a minority of Senators, led by special
    interest groups, a veto over who can become a judge. It is
    already hard enough for talented and capable individuals to be
    appointed judges without a minority of Senators imposing a
    litmus test;
        Third, the filibuster of legislation can at least be
    defended on the ground that Federal legislation ought to be
    considered with extraordinary care. In contrast, the
    confirmation of 1 out of 175 appellate judges is a much less
    momentous matter. This is especially so since a Judge Estrada
    or a Judge Owen would be only one judge on a panel of three,
    sitting on a court with 12 to 15 judges.
        The Senate can always change its rules by majority vote. To
    the extent that Senate Rule XXII purports to require a two-
    thirds majority for rules changes, Rule XXII is
    unconstitutional. It is an ancient principle of Anglo-American
    constitutional law that one legislature cannot bind a
    succeeding legislature. This principle goes back to the great
    William Blackstone, who said in his commentary, ``Acts of
    Parliament derogatory from the power of subsequent Parliaments
    bind not.''
        Three Vice Presidents of the United States, presiding over
    the Senate--Richard Nixon, Hubert Humphrey, and Nelson
    Rockefeller--have all ruled that the Senate rules can be
    changed by a simple majority of the Senate.
        Lloyd Cutler, White House counsel to Presidents Jim Carter
    and Bill Clinton, has written in the Washington Post that
    Senate Rule XX is plainly unconstitutional.
        The Senate can, and should, now amend Rule XX by simple
    majority vote to ban filibusters of judicial nominations.
        [The prepared statement of Mr. Calabresi appears as a
    submission for the record.]
        Chairman Cornyn. Thank you, Professor.
        We will now move to rounds of questions, with 10 minutes
    each, and I will go ahead and start.
        I guess, in listening to the fascinating remarks that each
    of the panel members have delivered so far on this particular
    panel, I just want to make sure I understand, in particular,
    Ms. Greenberger and Professor Gerhardt, would it be fair to
    characterize your testimony as ``if it ain't broke, don't fix
    it''? And, if not, tell me how you disagree.
        Ms. Greenberger. No, I do not say there are not problems
    that need to be addressed. I think there are things that need
    to be fixed. My solutions for fixing them, however, are not to
    change the rules with respect to the filibuster, are not, as I
    think it was Senator Specter had said, to interject nuclear
    suggestions that would lead to a further breakdown in comity;
    rather, my suggestions for the kinds of things that would
    enhance the judicial selection and appointments process would
    be those that would foster comity, those that would foster
    consensus candidates, those that would foster a give-and-take
    with respect to the administration and the Senate to respect
    both the role of the President, in nominating, and the
    constitutional role of the Senate, in giving advice and
    consent, so that there would be, at the end of the day, more
    confidence and better justice provided for the American public.
        So I do think there are changes that could be very useful
    and important to make, but not the sorts of changes that would
    undermine the filibuster that would change the Senate rules as
    they have been operating, that they have been operating to this
    day in many different forms, in many different contexts, and
    not to look for those kinds of extreme, as they were saying,
    not my words, but these nuclear suggestions that, to me, would
    exacerbate the problem.
        Chairman Cornyn. I will give you a chance to answer the
    question, Professor Gerhardt, in just a moment, but let me just
    ask a follow up to Ms. Greenberger.
        So are you saying we just need to do a better job of
    getting along with each other?
        Ms. Greenberger. No, I am saying that there are very
    concrete things that might be useful to foster the getting
    along with each other.
        Again, I want to go back to the Constitution, which talks
    about the Senate giving advice, as well as consent. If the
    President respected the advice function that the Constitution
    places with the Senate and seeks specific consultation with
    respect to potential nominees before they are made, that would
    be a very dramatic change, as I understand it, from the way
    things are operating right now and could foster the kind of
    comity that I mentioned.
        There was a newspaper article in the middle 1990's that was
    interviewing a Clinton administration official who was
    responsible for picking judges, and this particular official
    was quoted as saying that the administration was not going to
    be sending up any nominees that could not get 60 votes. And I
    am sorry that Senator Hatch had to step out because he was
    quoted in that article as well as talking about the fact that
    he would be personally a force that the administration was
    going to have to contend with in sending any nominee.
        So there was a very close consultation process. The
    nominees that were sent up, were sent up with an expectation
    that there would be enough consensus around them to get 60
    votes.
        Chairman Cornyn. Would that be more than a majority of the
    Senate?
        Ms. Greenberger. Sixty votes, yes.
        Chairman Cornyn. In other words, assuming--
        Ms. Greenberger. Yes, it would be also a--
        Chairman Cornyn. If you will wait for my question.
        Ms. Greenberger. Sorry.
        Chairman Cornyn. Assuming that, as you say, the
    Constitution requires the President to seek advice from the
    Senate before he nominates judges or judicial nominees of his
    choosing, would that advice come from a simple majority or does
    it require a supermajority?
        Ms. Greenberger. Well, I want to say that since the Senate
    rules require that if there are Senators who choose to invoke
    filibuster, there can be a 60-vote requirement. Then that kind
    of advice needs to be taken into account. There are obviously a
    number of nominees, as I mentioned in my statement, who did not
    get that supermajority, but were confirmed, nonetheless, in the
    last week or more by the Senate. But that is not a healthy
    situation for nominee, after nominee, even if they squeak by
    and get confirmed, to be so controversial and to cause so much
    concern in the country among so many organizations.
        Organizations can be disparaged as special interests, and
    we do not have to care about them. These are not organizations
    that are out trying to find a way to make money. They are
    trying to protect the most basic and fundamental rights of
    organizations. I do not view representing women and families as
    a special interest to be disparaged.
        When people are concerned and scared about the future of
    their fundamental rights, whether or not we are talking about a
    supermajority, there ought to be that advise function that
    respects the kinds of consensus candidates that gives the
    American public confidence in the judiciary, and we have not
    seen that advise function, and so I would say, and there a
    number of specific suggestions I could make, if, for example,
    the specific nominees were--before they were actually made were
    run by the Senators in their home States, were run by the
    Senators in the Senate Judiciary Committee, that would be a
    very dramatic change in what is going on right now, and I think
    it would make an enormous difference.
        Chairman Cornyn. Would you give them a veto, the home
    Senator a veto on the entire Senate--
        Ms. Greenberger. No, then we are getting into the ``blue
    slip'' situation, of course, that is another process that has
    not been discussed very much in this context, in this hearing,
    but the Senate, in many ways, which has been pointed out,
    operates in a deliberative fashion that gives much credence to
    particular Senator's objections with respect to holds, with
    respect to blue slips, with respect to objections they would
    have.
        The best process is to try to see where that comity can
    come. Also--
        Chairman Cornyn. And you think that is a good thing that
    judicial nominees are killed in the confirmation process
    because a single Senator or any small group of Senators may
    object to the nominee?
        Ms. Greenberger. Well, that certainly was the history that
    I must say I was very concerned about during the Clinton
    administration.
        Chairman Cornyn. I am just asking if you think it is good
    or bad.
        Ms. Greenberger. I think that what we saw during the
    Clinton administration was an abuse of that process, and we saw
    nominee after nominee never getting a hearing, to begin with,
    and why that nominee never even got a hearing year after year,
    after year, is hard to say whether it was one Senator or what
    the problem was. That is often not open to the public scrutiny
    to know. I do not think that kind of secrecy was a good thing
    when I was abused, as it was, with so many nominees in the
    Clinton years who could not get a hearing or, if they did get a
    hearing, then never were sent to the floor. Senator Lott said
    he had many better things to do than confirm judges.
        Chairman Cornyn. What I am trying to understand, though, is
    if you are saying that it is a good thing or a bad thing,
    regardless of who is in White House, for a single Senator or
    perhaps the Judiciary Committee, as a whole, to be able to have
    the power to thwart perhaps a bipartisan majority who would
    otherwise confirm that Senator? I am asking without regard to
    partisanship, without regard to who is in the White House, do
    you think that is a good thing or a bad thing?
        Ms. Greenberger. And that is the spirit that I am trying to
    answer your question with. I think because it is facts-and-
    circumstances kind of answer, and what we saw with respect to--
        Chairman Cornyn. Sometimes it is good and sometimes it is
    bad.
        Ms. Greenberger. I think when it is abused, I think when it
    ends up putting in peril many nominations without articulated
    reasons, that is not a good thing. I think that is very
    different than the filibuster which is the subject of this
    hearing and the focus of this hearing, which is out in the
    public, where we are talking about at least 41 Senators who
    have to express their deep concerns, and that is very different
    than what we saw during the Clinton administration, where
    things were behind closed doors and not subject to public
    scrutiny, and there really were abuses. There is no doubt about
    it.
        And if you would--
        Chairman Cornyn. If I could--and I have not Professor
    Gerhardt, I apologize, I asked an initial question, and my time
    is running out for this initial round, but it looks like
    Senator Feingold and I are going to have a chance to do a
    number of rounds, since are the only two here now. Hopefully,
    we will be joined by other Senators, but I asked Professor
    Gerhardt if it was fair to characterize your testimony as ``if
    it ain't broke, don't fix it,'' and I wanted to certainly give
    you a chance to respond.
        Mr. Gerhardt. I appreciate that very much, Senator.
        I am not sure I do think the process is broken, and I think
    a lot depends on what the ``it'' is to which we are referring;
    in other words, a lot depends on what you think might be
    broken. I do not think the filibuster is constitutionally
    defective, I do not think the rules of the Senate are
    themselves problematic, and so I would not recommend fixing
    those things. I do not think the system is broken.
        At the same time I have the impression that, by and large,
    most nominations go through this process rather smoothly, and
    the friction is focused on a relatively few number of
    nominations. That might be inevitable, and it might not be a
    bad thing for there to be a great deal of debate.
        As for one other aspect of that process, Senator, you asked
    about whether it is a good or a bad thing for an individual
    Senator to nullify a nomination. It seems to me to be a good
    thing that an individual Senator has the prerogative, but like
    any prerogative, it can be used for good or it can be used for
    bad. So I would make a distinction between the discretion that
    a Senator has and how he or she may use it, but that is
    something for which they stand politically accountable. And I
    think that is how our system operates.
        If I may, Senator, and maybe if I can do this as a personal
    privilege, I just want to correct one thing that Dean Kmiec
    said. He quoted from my book, but I do not think it was
    accurately quoted. My critique of the supermajority requirement
    was actually a critique directed at a constitutional amendment
    proposed by Bruce Ackerman. I was critiquing a constitutional
    amendment, and the suggestion is I was doing so on the ground
    that it violated majority rule in the Senate. In fact, I was
    weighing the merits of a majority voting margin in the Senate
    against a constitutional amendment to displace it.
        Chairman Cornyn. Just one last question, and then I will
    turn it over to Senator Feingold.
        I am glad you brought up the question of the book that you
    have written, and I guess that is either a blessing or a bane
    when you write a book and have to then live with what you have
    written. And I just want to hear whether you still agree with
    what you have written, or maybe you can just put it in context
    and explain.
        The book you published in the year 2000, ``The Federal
    Appointments Process: A Constitutional and Historical
    Analysis,'' criticizes the proposal that I guess was by Mr.
    Ackerman for conforming judges, and in that book, you state:
    ``The final problem with the supermajority requirement is that
    it is hard to reconcile with the Founders' reasons requiring
    such a vote for removals and treaty ratifications but not for
    confirmations. The Framers required a simple majority for
    confirmations to balance the demands of relatively efficient
    staffing of the Government.''
        I just want to be clear. Do you still adhere to that
    statement?
        Mr. Gerhardt. Oh, very much so, Senator, because again,
    what I am doing there is responding to a proposed
    constitutional amendment, and I might point out that Professor
    Ackerman's constitutional amendment proposal was to amend the
    final vote necessary for choosing Supreme Court Justices, not
    just judges generally.
        So my discussion about supermajority voting was done in
    that context. I was basically saying I thought a majority vote
    made more sense than a supermajority vote in the final action
    on Supreme Court nominations.
        Chairman Cornyn. You would agree, finally, that the Senate
    cannot adopt a rule that conflicts with the Constitution;
    correct?
        Mr. Gerhardt. That is correct. But I also think that the
    rules generally may be amended only in accordance with the
    rules.
        Chairman Cornyn. Thank you.
        Senator Feingold, let me turn it over to you.
        Senator Feingold. Thank you, Mr. Chairman.
        First let me ask unanimous consent to put the statement our
    Ranking Member of the full committee, Senator Leahy, in the
    record.
        Chairman Cornyn. Certainly; without objection.
        Senator Feingold. Thank you, Mr. Chairman.
        Let me thank all the witnesses for your patience, and I
    hope you do not regard the long statements by Senators as in
    any way a constitutional or unconstitutional filibuster.
        Mr. Fein, let me start with you. It is a pleasure to see
    you again. I enjoyed having you testify before this
    Subcommittee 5 years ago, when Attorney General Ashcroft was
    Chairman of this Subcommittee, about the importance of
    maintaining an independent Federal judiciary. I appreciated
    your testimony and your responses to my questions at that time.
        Now, unlike some of our other witnesses here today, you
    have sharply criticized both Republicans and Democrats for
    holding up judicial nominees--I give you credit for that--and
    in a 1997 New York Times op-ed, you criticized your chairman,
    Chairman Hatch at that time, for holding up Clinton nominees.
    You wrote: ``Mr. Hatch has vowed to prevent confirmation of
    Clinton nominees he deems likely to be judicial activists. He
    insists that a philosophical litmus test will not infect the
    confirmation process with politics, but it was Mr. Hatch and
    other Republican Senators who complained about just that after
    Robert Bork was rejected for a seat on the Supreme Court
    because of his judicial philosophy.''
        You went on to say that ``Republicans seem to have
    forgotten what Alexander Hamilton instructed in Federalist 76,
    that the Senate is confined to screening judicial nominees for
    corruption, cronyism, or incompetence. Judicial philosophy is
    not on Hamilton's list.''
        Now, I assume that in that article, you were criticizing
    the Chairman for delaying or simply not granting hearings for
    your opinion between holding up nominees by not granting them
    hearings and filibustering of judicial nominees.
        Are both of these tactics equally subject to constitutional
    attack?
        Mr. Fein. I believe so. If the purpose is to prevent a
    majority in the Senate from voting, I believe it is subject to
    constitutional attack.
        But I want to amplify on an element here that perhaps has
    been obscured. It seems to me that if the Senate majority
    wishes by acquiescence, inaction, by carrying over rules or
    affirmative vote, confirming power on Committee chairmen or
    committees to kill nominations, wishes at any time to give a
    minority a veto over a nomination coming to the floor, that is
    their entitlement. The majority can give away, but then it can
    also take back.
        So it is my view that at any time, a Senate majority could
    perhaps by resolution or otherwise vote to instruct that there
    should be a disregard either by a presiding officer if there is
    a filibuster, or if a nomination is being held up in Committee,
    to instruct that it would be unconstitutional to deny a vote in
    the full Senate on a judicial nominee, and I think that Senate
    vote would prevail under the Constitution over the obstruction
    tactics that you have identified and that I thoroughly deplore.
        But if the Senate decides not to do anything, it seems to
    me the majority is ill-equipped to complain, then, that they
    are sitting and not challenging what they think is a hijacking
    of a majority process by a minority.
        So I am not, I do not think, censoring at all the Democrats
    in this particular instance from asserting their rights under
    the rule if the Republicans want to acquiesce in that. I still
    insist, however, that if the Republican majority wanted to go
    forward, they could.
        Senator Feingold. I appreciate your candor on this, because
    I have been on this Committee throughout that period that you
    criticized, and I am confident that if what is being proposed
    today is somehow unconstitutional, then what was being done
    then was also unconstitutional.
        Mr. Fein. Absolutely it was.
        Senator Feingold. Professor Eastman, let me first return
    briefly to your reference to Robert M. LaFollette, as I am
    compelled to do. I think he is the greatest leader ever to come
    out of Wisconsin. I am sorry that you see your blood line with
    him as a black sheep situation.
        I just want to remind you that Senator John F. Kennedy was
    asked to chair a commission in the 1950's and to pick five
    Senators in the history of the Nation to be honored in the
    reception room. Well, three of them were so easy they could not
    even discuss it--Clay, Calhoun, and Webster. They thought,
    well, we had better have two from the 20th century. Let us get
    one on the conservative side and one on the progressive side.
    They picked Robert Taft on the conservative side, and who was
    the fifth? Robert M. LaFollette of Wisconsin. And it is his
    face that you see as you enter the Senate Chamber.
        There is no way that I could leave the record anything
    other than rebuking your remarks about the great Robert M.
    LaFollette.
        Professor?
        Mr. Eastman. Senator, thank you for reviving my family's
    name in that regard.
        Senator Feingold. Very good.
        Professor Eastman, you wrote an article published in June
    2002 in the publication ``Nexus'' entitled, ``The Senate is
    Supposed to Advise and Consent--Not Obstruct and Delay.'' Let
    me quote from that article.
        ``The very existence of the judiciary is premised on the
    fact that the majority is not always right, allowing the Senate
    elected by the majority too great a hand in regulating the
    Federal bench, risks eroding the judiciary's power to perform
    this most crucial task.''
        You wrote this, of course, when Democrats were in control
    of the Senate, and you were harshly critical of their treatment
    of judicial nominees.
        Less than a year later, with Republicans in control of the
    Senate, you come before the Committee and testify as follows:
    ``The use of a filibuster for dilatory purposes is particularly
    troubling in the context of the judicial confirmation process,
    for it thwarts not just the majority in the Senate and the
    people who elected that majority, as any filibuster of ordinary
    legislation does, but it intrudes upon the President's power to
    nominate judges and threatens the very independence of the
    judiciary itself.''
        Professor Eastman, we see changes of position because the
    political situation changes all the time in the Congress. But
    you are appearing here as an unbiased constitutional scholar.
    It seems to me that the only way to reconcile your two
    positions, one before and one after the 2002 elections, is to
    conclude that you think Senate Democrats, whether in the
    majority or the minority, should have no role in the
    nominations process, and President Bush should be able to
    appoint and have confirmed whomever he wants to the Federal
    bench.
        Can you give us another explanation for your two
    conflicting statements?
        Mr. Eastman. Senator, I do not see anything conflicting in
    those statements at all, and let me be very clear. In both my
    testimony today and my testimony in the House of
    Representatives last fall and in that article, I have said that
    the Senate does not have the primary role in the appointment
    process, that the President does. And I said that both when
    this President was in office and when President Clinton was in
    office, that the primary role for the appointment process
    itself was given to the President because the Framers were
    concerned that by giving a primary role or a central role to a
    collective body would induce cabal and that to avoid that, that
    the Senator's role was much more limited to providing a check
    on the President.
        And what you are talking about now when I produced that
    article was that the Senate Democrats were not just using it as
    a check on the President for untoward appointments, for
    appointments made out of bribery or for nepotism purposes, but
    because they disagreed with the judicial philosophy about which
    the President had waged his campaign, in part. And I thought
    that the use of ideology for that purpose was illegitimate.
        I left open the possibility to use ideology when a nominee
    comes before this body and says something that makes it
    impossible for him to honor his oath of office, that if a
    nominee were to come before this body and be asked, for
    example, as I point out in that article, the question, If the
    law and the Constitution was clear, and it disagreed with your
    personal conscience on a subject, which way would you rule as a
    judge--to uphold the law or to further your conscience--and
    that nominee that I referred to in that article said ``To my
    conscience.''
        I think that that is a demonstration of a disqualifying
    ideology and is one of the limited instances when the Senate
    does have the obligation to take ideology into account. But
    beyond that, to thwart the role of the President merely because
    Senators disagree with the outcome of an election I think is
    improper, and I think that is perfectly consistent with what I
    said today.
        Senator Feingold. Well, I recognize your response, except I
    do not think it resolves the problem that you had one view
    about majority rule under one Democratic President and another
    view about majority rule under a Republican President.
        Now, you wrote in the same 2002 article when the Senate was
    controlled by Democrats, and you were outraged by delays in
    confirming President Bush's judges, that ``The refusal to hold
    hearings at all is not advice or consent. It is political
    blackmail, which perpetuates the critical number of vacancies
    on the Federal bench.''
        As you are aware from your own previous writings during the
    Clinton Presidency, the Republican-controlled Senate Judiciary
    Committee refused to hold hearings on numerous Clinton judicial
    nominees. When various judicial nominees of President Clinton
    were denied a hearing and never allowed a vote and in some
    cases were even filibustered on the Senate floor, did you ever,
    Professor, write or speak out against any of the very tactics
    you publicly criticized in 2002? Why not, if you did not? And
    do you agree that these practices were as wrong then as you say
    they are now?
        Mr. Eastman. I think I agree with Bruce Fein's statement on
    that, that if the majority is willing to acquiesce, there is
    not a problem.
        I do think it presents a problem for the minority or for a
    majority from a prior Senate to try to entrench a rule that
    prevents the majority from ultimately having its way.
        I think we need to distinguish between two uses of the
    filibuster and two uses of a hold or two uses of a Committee
    hearing. There are some nominees who simply do not have any
    majority support in the full body, and it would not be worth
    the effort to go through the process. But what we were talking
    about in the instances that I referred to in my article is
    where there had already been a majority of Senators expressing
    their views to support a nominee who was being bottled up in
    Committee. That process, then--the Committee holds and the
    refusal to hold hearings were in fact thwarting the will of the
    majority even of the body under Democratic majority control.
        So I think it is perfectly consistent that in both
    instances, I have said we need to get to a process that
    ultimately, after extensive and reasonable debate, lets the
    majority have its say, because to do otherwise, to impose a
    supermajority requirement contrary to the Constitution, intrude
    on the President's power and threaten the independence of the
    judiciary.
        Senator Feingold. Mr. Chairman, I think that at least one
    good thing has come out of this hearing. We have a witness on
    both sides here, both publicly stating that what was done when
    the Republicans controlled the Senate was wrong and perhaps
    unconstitutional under this theory--or, actually, it was Mr.
    Fein--excuse me--two witness on this side suggesting that. And
    that is very important because the American public is being
    misled that somehow this is something that began after
    President Bush became President. That simply is not the truth,
    and I stand here as a person who enraged a number of my
    supporters by voting for the confirmation of John Ashcroft as
    Attorney General, because that had never been politicized,
    because that kind of game has never been played in Cabinet
    appointments.
        But I will stand here as the same Senator and tell you that
    what was done to President Clinton's right as the President of
    the United States for his second term was in my view
    unconstitutionally wrong.
        Therefore, Mr. Chairman, any attempt to resolve this
    problem, which I know you sincerely want to do, has got to be
    something other than that George Bush gets all his nominees,
    and gee, hopefully things will be better when the Democrats
    have a President. It does not justify payback--you and I have
    talked about this--but it requires a recognition of what was
    done in the past, a public admission that what was done with
    regard to the Democrats was simply wrong and distorted--
    distorted--the Federal judiciary, because the Federal judiciary
    should have represented the results of the 1996 election, and
    it did not.
        Thank you, Mr. Chairman.
        Chairman Cornyn. I see that Senator Durbin has joined us,
    and Senator, if you do not mind, let me ask a few questions and
    then I will turn it over to you, in the spirit of going back
    and forth across the aisle in the course of our questioning.
        Dean Kmiec, I was interested in both your and Professor
    Calabresi's comments regarding Blackstone's dictum about no
    parliament can bind the hands of a future parliament and how
    you view Senator Rule XXII, which provides for the cloture
    requirement of 60 votes before debate can be ended.
        I would be interested in how you reconcile, if you can, or
    any comments you have on Senate Rule XXII in that context.
        Mr. Kmiec. Thank you, Senator.
        I think there is an agreement emerging perhaps on the panel
    and among the Senators as well on this constitutional
    proposition, that a majority of the Senate must have within its
    constitutional authority the power to amend its own rules.
        If that is the case, then a carryover rule, Rule XXII, that
    denies you as a new Member of the Senate the opportunity to
    pass upon the question of whether or not cloture for a judicial
    nomination ought to be a simple majority rather than 60, or
    actually, to amend rules--as you know, Rule XXII requires 67
    votes--then that is an unconstitutional entrenchment of prior
    rules.
        Now, Senator Feingold said just a minute ago that there
    have been abuses on both sides, and I have tried to say in my
    statement that I concur. One thing I know about being a dean is
    that if you are going to get beyond disagreements on a faculty,
    you have to put aside the past hurts and infringements and
    encroachments and look at the vision in front of you. And I
    think that that is what this hearing is about.
        The vision in front of us is whether or not we can operate
    in a constitutionally appropriate manner with regard to the
    rules that apply to judicial nominations. Rule XXII as it is
    presently being applied to judicial nominations, which is
    something that has emerged only with regard to the past two
    nominations, is in fact an unconstitutional entrenchment in my
    judgment, and I have not heard a dissenting voice from that on
    the panel even as Professor Gerhardt has raised the issue that
    filibusters in general are not per se unconstitutional.
        No one has argued that--at least I am not arguing that--but
    Rule XXII, which entrenches a 60-vote requirement, has those
    constitutional problems.
        Chairman Cornyn. Yes, Professor Calabresi?
        Mr. Calabresi. Thank you.
        I also would agree that Rule XXII is problematic to the
    extent that it purports to entrench the views of the prior
    Senate. I think the principle that prior legislatures cannot
    bind their successors is a fundamental principle of English and
    American constitutional law. It is so for a very good reason.
    If this Congress were able to pass a bill and provide that it
    could only be repealed by a two-thirds or a three-quarters
    majority in the future, that would improperly rob future
    Congresses of the role that the Constitution gives them.
        It seems to me that that is what Rule XXII does to the
    extent that it purports to say that a majority of the Senate
    cannot change the rule.
        I do agree with Bruce Fein and John Eastman that a majority
    of the Senate can adopt rules that structure their
    deliberations by, for example, setting up, of course,
    committees and processes for blue slips and holds whereby
    things may not be brought up for a vote, but if a majority of
    the Senate wants something brought up for a vote, and if the
    majority of the Senate wants to change Rule XXII to provide for
    that, that seems to me to be totally warranted.
        I guess I would also say that while I think that there
    were--Senator Feingold mentioned that there were a number of
    Clinton nominees who may not have received as good treatment as
    they perhaps deserved. Elena Kagan, who has now become the dean
    of the Harvard Law School, is one of those nominees, somebody
    whom I know and think highly of, and I wish that her nomination
    had been acted on.
        But it seems to me that allowing a delay through
    filibustering of 2 years and taking up a nomination like Miguel
    Estrada's or Priscilla Owen's is a whole new order of magnitude
    of delay.
        Mr. Gerhardt. Senator, may I correct the record? I am real
    sorry to interrupt; excuse me.
        Chairman Cornyn. I noticed that when the dean was saying he
    thought a consensus was emerging, you were shaking your head,
    so please go ahead.
        Mr. Gerhardt. I am sorry, Senator. Excuse me.
        Chairman Cornyn. Go ahead, please.
        Mr. Gerhardt. I appreciate it. I just want to point out
    quite briefly that I guess we do not have the consensus, I
    regret to say. The last few pages of my statement spell out,
    and I will not repeat here, reasons why I think not only is the
    filibuster constitutional, but also the requirement for a
    supermajority vote to change the rule of filibuster.
        Entrenchment, I think--and this is the technical word--
    entrenchment is omnipresent within the legislative process, and
    I would only just point out a terrific article in the Yale Law
    Journal by Eric Posner and Adrian Vermeil, who argue against
    anti-entrenchment and defend supermajority voting requirements.
    A common example that they might give and that would challenge
    the Committee is that Congress uses sunset clauses in its laws
    all the time; those entrench policies. In fact, every time
    Congress passes a law, it has the potential for entrenching
    policies.
        So I think entrenchment and the possibility of a current
    legislature binding the hands of a future one is always there.
        Ms. Greenberger. Could I also say--
        Chairman Cornyn. You would agree, wouldn't you, Professor
    Gerhardt, that if a subsequent legislature decided to change or
    amend that law, it is certainly at liberty to do so?
        Mr. Gerhardt. By the appropriate voting procedures, yes,
    sir.
        Chairman Cornyn. Okay.
        Ms. Greenberger. Senator, could I just--
        Chairman Cornyn. I want to just clarify with Professor
    Eastman and Mr. Fein some of your earlier statements.
        Do you say that the prior use of blue slips or Committee
    rejections are always unconstitutional, or just
    unconstitutional if the majority disagrees but is prevented by
    filibuster from doing anything about it?
        Mr. Fein. Well, I am just saying that the Senate has a
    right at all times by majority to overrule a deference--or a
    blue slip or otherwise. If it wishes to acquiesce in a blue
    slip at any particular point, that is up to the majority. But
    what becomes unconstitutional is an attempt to handcuff the
    majority from deciding they want to depart from their customary
    deference to minority at this time and vote.
        Chairman Cornyn. Professor Eastman?
        Mr. Eastman. I agree with that. And for a Republican
    majority in the 1990's to have deferred to its committees does
    not raise the same kinds of constitutional issues, or for a
    Democrat majority to have deferred to its committees does not
    raise the same kinds of constitutional issues, as when we are
    talking about a minority of either party being able to thwart
    the will of the majority.
        Now, they are not yet thwarting the will of the majority.
    The Senate rules have carried over. It is incumbent upon this
    body if they think there is a problem with the supermajority
    requirement, as I think there is, to enact a modification to
    that requirement. And I do not think there is any disagreement
    on that point.
        Where there is disagreement is on whether this Senate can
    be bound by the two-thirds requirement carried over from a
    prior body, and I think most of us up here say that that would
    be unconstitutional, that it would give a supermajority
    requirement carried over from a prior body--and imagine a
    Senate that got 70 Democrats or 70 Republicans in a particular
    election, and they put in a bunch of rules that favor them in
    perpetuity, and then they say, ``And we are going to lock this
    in with a supermajority requirement.'' That would clearly be
    unconstitutional, and I think the entrenching provisions of
    Rule XXII are equally unconstitutional.
        Mr. Fein. if I could just amplify on that response with
    regard to potential litigation, it does seem to me that if the
    Senate majority itself does not take any action, if a challenge
    were brought in court to the filibuster rule, the court would
    say, ``You have a self-help remedy; why are you complaining to
    us?'' And I think it would be most injudicious to try to
    contemplate litigation without the Senate majority taking the
    reins and taking political accountability for altering the
    filibuster rule, which can be very tough, and trying to hand it
    off to some court, saying, well, this is wrong because the
    filibuster rule imposed by the Senate itself is thwarting the
    majority.
        Ms. Greenberger. Senator Cornyn, I am just feeling very
    nervous at not being able to disassociate myself also from Dean
    Kmiec's sense that there was a consensus emerging. I know that
    Professor Gerhardt has made clear for purposes of the record
    that he is not part of the consensus. I want to be sure that I
    for purposes of the record make clear that I am not as well.
    And I do think that I cannot help but see a connection between
    some of the concerns of some of the nominees that have provoked
    such strong opposition to lead to a filibuster or, in cases
    where they were not filibusters but still very strong negative
    votes, the fear is of an activist judge who will disregard the
    rule of law.
        To me, what is being discussed here is disregarding the
    Senate's rule of law in a similar activist and lawless and very
    distressing way. So I just want to be sure that that is
    understood.
        Senator Feingold. Mr. Chairman, I want to intervene here to
    also say that I--
        Chairman Cornyn. That you are not part of that consensus,
    either?
        Senator Feingold. I am not, and I want it on the record
    that I do not view Rule XXII's requirement that a supermajority
    is required to cut of the debate on a change of a rule as being
    unconstitutional. Rules can be changed by majority vote, but
    the Senate still has the right to set its own rules of debate,
    and we are very short of a consensus here on this Committee.
        Chairman Cornyn. Well, we are working on it.
        Finally, let me just ask--and then I will recognize Senator
    Durbin--Ms. Greenberger and Mr. Gerhardt, you both cite a Law
    Review article by Catherine Fisk and Irwin Chemerinsky to
    support your conclusions. I take it, then, you agree with the
    constitutional analysis in that article?
        First, Ms. Greenberger.
        Ms. Greenberger. Yes, I agree with parts of it, but I do
    not agree with all of it. I think that part of what that
    article dealt with was this very issue that is being discussed
    about entrenchment, and I think that one of the things that is
    always important is to be sure that those authors have an
    opportunity to explore and explain their views, and that is not
    something that I have had the opportunity to hear from them
    about. But I do think their point with respect to the
    filibuster is something that I agree with.
        I want to also--
        Chairman Cornyn. I am sorry. Let me ask you, rather than
    volunteer statements, let me just ask some questions. I find
    your response interesting because they rested their analysis on
    the assumption that it only takes a majority to change the
    rules and that Rule XXII cannot be used to impose a two-thirds
    voting requirement for debate on a rule change.
        If you endorse the Fisk-Chemerinsky constitutional
    analysis, then I assume you believe that a majority of the
    Senate can get rid of the filibuster--or is it that you agree
    with part of it, and is that consistent with what you said
    earlier--you agree with part of what they said and not other
    parts?
        Ms. Greenberger. I think that certainly if, following Rule
    XXII and the supermajority vote that is required, the two-
    thirds vote that is required, to either change the filibuster,
    as of course the Senate has done in the past--it has altered
    the nature of the filibuster rules on repeated occasions in the
    past, so I would certainly say that under Rule XXII, there is
    the set procedures for changing the filibuster rules and
    following Rule XXII's prescriptions--the Senate of course could
    change the filibuster rules if it so decided. But I do
    believe--
        Chairman Cornyn. It would require 60 votes to close off
    debate in order to change that filibuster rule; is that what
    you are saying?
        Ms. Greenberger. Well, certainly it would require the
    filibuster cloture vote, too, but then there is also the issue
    with respect to changing the rule itself and getting to the
    merits and to the underlying requirements of the two-thirds
    vote.
        Chairman Cornyn. Let me correct myself. Actually, it is
    two-thirds. I think that point was made earlier.
        Ms. Greenberger. Right.
        Chairman Cornyn. I have gone way over in my time, and at
    this time I would be happy to recognize Senator Durbin for any
    questions he may have.

     STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
                           STATE OF ILLINOIS

        Senator Durbin. Thank you very much, Senator Cornyn, and
    thanks to the panel.
        I would just like to make a couple of observations. Before
    I came to Congress 20 years ago, I was the parliamentarian of
    the Illinois State Senate for 14 years. So I sat there with
    those rules and worked with them every day; that was part of my
    life. So I understood them. That was what I was paid to do, and
    I understood those rules.
        Then I came to the U.S. House of Representatives, and it
    was a struggle with Jefferson's Manual and the new House of
    Representatives Rules.
        And then I came to the Senate and faced a new set of
    rules--and again, I am a student--I do not profess to be an
    expert. But I did notice one essential difference as I moved
    from a State Senate to the U.S. House of Representatives to the
    United States Senate. Without fail, after every election in the
    Illinois State Senate, we adopted our rules. Without fail,
    after every election, the U.S. House of Representatives adopts
    its rules. Without fail, after every election, the Senate does
    not adopt its rules. Now, why is that? Because they are
    continuous. Those rules continue. Even though we are a
    subsequent Congress, we are a new group of Senators for our own
    purposes. From the viewpoint of the Senate and its tradition,
    we are a continuing body. Robert Caro makes that point I think
    very graphically in his book about LBJ, which most of us have
    read, and I think that is being overlooked today by so many
    people who say, ``Well, this is a new Congress. You ought to be
    able to start out anew.''
        We never do. We start off with the old rules, and we do not
    even adopt them because no one has wiped them away. They are
    still there today as they were before the election, and that
    creates a different premise for this debate as far as I am
    concerned.
        The second thing I would like to say is that early in the
    third quarter, for those who are keeping score, the score is
    123 to 2--123 to 2. President Bush as of this afternoon has
    received 123 judges that he has asked for, and exactly 2 have
    been held up.
        You would assume from this hearing that the numbers were
    exactly the opposite--that we had only approved 2, we have
    filibustered 123 judges--and it is just an outrage.
        Well, I would like to put it in perspective. I understand
    why Senator Cornyn called this hearing. It must be curious to
    you as a new Senator to come in at this point and wonder why
    has the Senate tied itself in knots over a judicial nomination
    to the point where there is a real difference, and the
    filibuster is being used on two of the nominees.
        And I would simply say to you that there were several games
    played before you arrived--in fact, at least 59 games played on
    Clinton nominees who were never given a hearing, never given a
    day in court, never given a chance to sit at that table--59
    different individuals.
        Now, there are those who are arguing that in and of itself,
    there is nothing wrong with that, but it is clearly wrong to
    use the filibuster on two nominees sent by the Bush White
    House. I do not think that that follows, and I think that is
    the point made by Senator Feingold. If the rules of the Senate
    could countenance the abusive treatment of 59 Clinton nominees
    and say, ``It is the rules of the Senate; you have got to live
    with it, Democrats--sorry,'' to stand back now and say, ``The
    rules of the Senate cannot be used to stop a Bush nominee.
    There is a constitutional principle at stake here,'' does not
    work. It was either unconstitutional then and is
    unconstitutional now, or vice versa. Take your pick.
        But having said that, what is also, I think, unspoken here
    is that we understand the agenda during the Clinton years. The
    agenda was to leave as many vacancies as possible, particularly
    at the circuit court level, use the Senate rules, use whatever
    you can, in the hope that a Republican would be elected
    President who would fill those vacancies. That is what this is
    all about. We are playing ping pong above the table and rolling
    bowling balls at one another below the table. That is what this
    debate is all about.
        I think the only way to resolve it is if something happens
    which would be truly miraculous, and that is a surrender of
    power by our President, and I do not think he is going to do
    it.
        One or two of the suggestions that have been made to try to
    find some bipartisan way out of this are not likely to be
    embraced by this White House--maybe it would never have been
    embraced by a Democratic President. But until then, we are
    going to find ourselves in this tangle.
        And I might also add parenthetically that when you are
    dealing with judges of the kind that are being held up and the
    kind that may be challenged in the future, this is going to
    happen again. We live in a closely-divided Nation politically,
    in a closely-divided Senate, and with closely-divided courts,
    and it is no wonder that one or two nominees become
    determinative.
        I would just like to ask maybe Professor Calabresi, since
    you are from my home state--and let me just add that I am not
    part of your ``angry minority''; I have a smile on my face, and
    I am doing my best. I am not angry over this, but I am anxious
    to find some justice in the situation.
        Could you tell me how you could rationalize the treatment
    of Clinton nominees under Senate rules being denied even an
    opportunity for hearing as being constitutional, and the use of
    the filibuster rule as unconstitutional?
        Mr. Calabresi. Sure. Actually, let me comment on several of
    the things that you said. First, with respect to your comments
    about the Senate being a continuing body, the Senate of course
    is a continuing body, but then, each new Senate organizes
    itself differently, perhaps with a different majority and
    minority leader--
        Senator Durbin. Under the Senate rules.
        Mr. Calabresi. [continuing.] With different members on
    Committees. If the Senate were completely a continuing body,
    then presumably the previous allocation of Committee slots
    might maintain itself and be perpetuated.
        Senator Durbin. But under the Senate rules.
        Mr. Calabresi. Second, with respect to numbers of nominees,
    you mentioned that there are two individuals up to now who have
    been filibustered, who have been held up for a period of 2
    years or so. Those two individuals are being nominated to be
    one of 175 Federal Court of Appeals judges in the country. I
    find it very hard to believe that the sky would fall if one of
    the 175 court of appeals judges in the country were an
    individual of the caliber of Miguel Estrada or Priscilla Owen.
        With respect to the Clinton period, I think a Senate
    majority does have the right to figure out what hearings to
    schedule and what hearings to hold.
        Senator Durbin. Under the Senate rules.
        Mr. Calabresi. Yes, yes, under the Senate rules which can
    be changed by majority vote by each succeeding new Senate. And
    it seems to me that the majority of Senators has a right
    basically to alter the Senate rules if it wants to do so.
        I do think that some individuals who were talented should
    have gotten action during the Clinton years. I specifically
    mentioned Elena Kagan who was nominated for the D.C. Circuit,
    who is now becoming dean of the Harvard Law School. As it
    happens, she and I clerked together on the Supreme Court with
    Miguel Estrada, and I had a very high opinion during those
    years of both Miguel Estrada and Elena Kagan, and I am sorry
    that there was not action taken on her nomination. I do not
    think that not acting on Miguel Estrada's nomination is going
    to make the situation any better.
        Senator Durbin. Mr. Gerhardt?
        Mr. Gerhardt. Yes, sir. With all due respect, Senator, I
    might want to go back to the question that Senator Cornyn asked
    me initially.
        Senator Durbin. On his time--no, go ahead.
        Mr. Gerhardt. Oh, I'm sorry. On the Chemerinsky article,
    Senator, I would say that I am quite good friends with both of
    the authors, and we agree on some things and disagree on a lot.
    I would say that I agree with some of the article; I disagree
    with some constitutional analysis in it as well, and I
    certainly disagree with their conclusions regarding the
    requisite vote for changing Senate rules.
        I might add that in fact I disagree to some extent even
    with their methodology. And you will note that I reached the
    constitutionality of filibuster by a different route than they
    do. So I rely on them for factual matters but not otherwise.
        I just want to echo Senator Durbin's eloquent remarks,
    because I do think the continuity of the Senate is a critical
    thing here, and that explains, I think, the unique
    circumstances of the Senate. While we can quote Blackstone,
    what he said that might have been true for the British
    Parliament and the British system, but it has nothing to do
    with the American system and the unique constitutional
    structure that includes Article I, Section 5, that empowers
    each Chamber to adopt rules for its respective proceedings.
        Senator Durbin. Mr. Fein, did you want to comment?
        Mr. Fein. Yes. One, I think that your comments really
    expose the kernel of the problem here. I think there is a sense
    on both sides of the aisle that there has been partisanship
    played whenever it suited their purposes and each side
    exploited the rules to their advantage but then wished to
    change the rules of the game when they fell to the minority
    party.
        There is no way to write a constitution with sufficient
    clarity in order to avoid the kind of logjam we are in now if a
    majority wants to take its power to an extreme, or a minority,
    exploiting the rules. There are what I call a series of
    unwritten elements to our Constitution. There are rules of
    self-restraint that, if not complied with, are going to have
    the whole system shipwrecked. A President could destroy a
    department he did not want simply by refusing to nominate
    anybody. If he does not like the Department of Education, he
    will not nominate a Secretary of Education or any assistant
    secretaries. Unless there is self-restraint and an agreement,
    tacit, that there will not be an exploitation in order to
    destroy what is commonly accepted in the public as popular will
    or the results of an election, I do not think there is any rule
    that you could adopt that is going to overcome the problem.
        Let me make one observation, however, with regard to the
    idea of a continuing Senate. I think your observation is quite
    accurate and forceful, but I do not think a continuing Senate
    can override Article II of the Constitution, which says in the
    Appointments Clause, so to speak, if you get a majority, and
    the majority forces a vote, then you have a confirmed judge.
    And in my judgment, even though the continuing Senate means
    that each Senate rule enjoys the same dignity as the any other
    even if it is a was a carryover from a previous Congress,
    still, if a majority of the Senate wants to exercise its
    muscle, so to speak, and force a vote on the floor, I think
    that the majority decision overrides the Senate rule by dint of
    Article II.
        Senator Durbin. I think I am out of time, unfortunately. I
    wanted to let Ms. Greenberger make a comment.
        Chairman Cornyn. Certainly we have time to do that, Senator
    Durbin. Go ahead.
        Senator Durbin. Thank you.
        Ms. Greenberger?
        Ms. Greenberger. Thank you. Thank you both Senators.
        I just wanted to make a couple of quick points. First of
    all, what we are talking about here, as I think Mr. Fein said
    at the end, is changing what the rule says with respect to
    needing a supermajority in order to change the rule. So that is
    the crux of whether or not the Senate can ignore these
    continuing rules and make up a new rule under these
    circumstances.
        There was no such changing of rules in the past, and while
    there may have been abuses of the rules--and that, Senator
    Cornyn, is what I was referring to as being unhappy about--I do
    take issue with Mr. Fein saying that both sides were changing
    the rules. I do not think that there was a changing of the
    rules in the past in contrast to what is being articulated now,
    under the theory that the current rules are unconstitutional.
        Second, I wanted to make a point with respect to the
    concept of a fresh start. Everybody wants to have a fresh start
    on the one hand; but a fresh start that ignores where we are
    today as a result of problems in the past is not a realistic
    way of having a fresh start that accommodates what I think
    people are looking for.
        Senator Feingold pointed out that there is a current
    distortion in the system as a result of what happened in the
    past. It is not sufficient to say, ``Oh, I wish things had been
    done differently. There were problems in the past. I am sorry
    about them. I pointed them out in the past, and now I am
    pointing them out in the current context.'' That takes us only
    so far.
        We have consequences today because of those problems in the
    past, so any fresh start has to take into account the fact not
    that there are one or two judges out of 175, so what problems
    could they cause with respect to Judge Owen or Mr. Estrada, but
    because of those problems in the pastcontinue today, in 2003,
    we have a distorted judiciary. We do not have the kind of
    needed balance of views. We do not have the enrichment of the
    different perspective of judges that we would have had.
        And therefore, in exercising the advise and consent
    responsibilities of this Senate and all of these Senators in
    coming to grips with each of the nominees, it is my view that
    the Senate and each Senator has a constitutional responsibility
    to take into account whether each of these nominees in the
    circumstances of today belongs on a court of appeals or a
    district court or ultimately the Supreme Court, but especially
    with respect to these lower courts, because of the distortions
    of the past and because we do not have the kind of balanced
    judiciary right now that we would have had absent those
    distortions.
        Senator Durbin. Thank you.
        I just want to conclude if I might, in 10 seconds. This is
    a discussion over an extreme procedure in the Senate. I think
    we are dealing with an extreme situation. It is one that we
    have not had before, and it is one that we can only deal with
    honestly, as has been suggested by my colleague, Senator
    Schumer, and others, and by Ms. Greenberger, if we deal
    honestly with the politics of this situation and where we are
    today.
        I will just close by reminding you that I have checked, and
    the score is still 123 to 2 in the third quarter, that is, the
    third year of the President's first term.
        Thank you.
        Chairman Cornyn. Thank you.
        Senator Feingold?
        Senator Feingold. I would like to offer to the record a few
    articles that Professor Eastman has written.
        Chairman Cornyn. Without objection.
        Senator Feingold. I would also like to offer into the
    record a helpful letter, I think, from Abner Mikva, former
    White House counsel and Court of Appeals judge for the District
    of Columbia Circuit.
        Chairman Cornyn. Without objection.
        Senator Feingold. Mr. Chairman, I want to also put in the
    record another clarification. I certainly do not think there
    was ever any majority acquiescence during the period described
    under the Clinton Administration. The Republican leader and the
    Republican Chairman never let so many of these Clinton nominees
    get a vote, and many did have majority support in the Senate;
    that is actually what happened.
        I am struck by this comment about self-restraint that I
    think is an important one. Let us just for 2 seconds look at
    the record.
        There was no self-restraint on the part of those who
    blocked the Clinton nominees, 59 people never getting through--
    there certainly was no self-restraint there. The Democrats'
    record here, as Senator Durbin reiterated, is 123 to 2. So that
    all these vacancies, as Ms. Greenberger pointed out, were
    filled by Bush judges.
        The record is 123 to 2, and this hearing is premised on the
    notion that the Democrats have been extreme? It is absurd. Any
    fair person could not possibly look at the record of the last 8
    years and conclude that it is the Democrat side that is
    extreme--and I am noted for not being particular partisan.
        I am just telling you, Mr. Chairman, that this is a
    travesty, to misinform the American people that somehow the
    Democrats have systematically blocked this.
        The fact is that there has to be some fairness, there has
    to be some recognition, as Ms. Greenberger just said very
    eloquently, of a systematic denial of what was the Clinton
    Administration's right to have these judges come through. And I
    think 123 to 2 is awfully good considering what happened
    previously.
        Thank you, Mr. Chairman.
        Chairman Cornyn. Senator Feingold, as we started out by
    saying, or as I started out by saying, I believe that it was
    not particularly fruitful for us to go back and examine the
    abuses of the past, whether they be real or whether they be
    just perceived. As a matter of fact, all three of us--Senator
    Schumer, you, and I--and the other members of the Judiciary
    Committee see that being played out every time the Judiciary
    Committee meets and talks about a judge who is subject to some
    division of opinion.
        My hope was that we could somehow get a clean break with
    the past--and I hear what you are saying; some may feel like
    that in itself is not fair--but what is fair, I think, is that
    we cannot control the past, and the only thing we can do is try
    to have an impact on the future. And the rules, if there are
    rule change adopted here, certainly they would operate equally
    for the benefit of a Democrat who is present in the White House
    or a Republican. To me, this is largely a test of our hopes and
    aspirations for what this process could be, and not an approval
    of what it perhaps has been in the past.
        Senator Feingold. Mr. Chairman, if I could just briefly
    respond. I think it is rare that one can go forward into the
    future without redressing past wrongs. There are ways to
    redress past wrongs. The administration does have within its
    power to recognize what was done and to negotiate with us about
    what happened. Those individuals in many cases are still
    available to be Federal judges. We recognize that most of the
    people appointed by President Bush should become judges. That
    in fact is the record. You may not like it that we refer to the
    past, but the actual record is we have approved 123 and only
    denied 2.
        So to say that in the context of this discussion, we should
    not refer to what happened in the past to me is not a
    suggestion that will actually help us move forward. We have to
    refer to it, because something has to explain why we would take
    such an extreme step, and we do admit it is an extreme step to
    filibuster judges. To not have a public discussion and
    regularly discuss how we got to this point is going to make it
    almost impossible to move forward.
        Chairman Cornyn. And just to clarify--and I do not really
    think we disagree even though I know it sounds like maybe we
    are right now--what concerns me so much is to hear comments on
    the floor of the Senate about ``What is sauce for the goose is
    sauce for the gander,'' or ``Tit for tat''--the kinds of
    recriminations and, frankly, things that are just beneath the
    dignity of this institution and the constitutional process in
    which we are engaged.
        I would wish that we could look forward and now have to
    relive the past--maybe that is not possible. The only problem
    is that for every Democratic Presidential nominee who was not
    confirmed, I am sure there are folks on my side who would say
    that when Democrats were in control, Republican nominees and
    the Republican President were not treated fairly. So I do not
    know where that takes us except continuing the downward spiral,
    and that is why I am hopeful, as a result of some of the
    proposals that have been made by Senator Schumer and others--I
    do not happen to particularly like his proposal, but I
    congratulate him and appreciate his willingness to make one.
        Let me just say two other things, and then I will recognize
    Senator Schumer for anything he has. I think what distinguishes
    the two nominees who are currently the subject of filibuster is
    that unlike the past, we have a bipartisan majority of the
    Senate that stands ready to confirm them today, and that is not
    true of any previous judicial nominee to my knowledge.
        The second thing is when I hear--
        Senator Schumer. If the Senator would yield, Paez and
    Berzon both went through with far more bipartisan majorities--I
    think 20 or 25 Republicans voted for Paez and Berzon.
        Chairman Cornyn. But they were confirmed, were they not?
        Senator Schumer. You said that is the difference; that is
    not a difference.
        Chairman Cornyn. I am saying that a bipartisan majority
    stands ready to confirm two nominees today where the Senate
    majority is not able to effectuate its will because of the
    filibuster.
        Ms. Greenberger. If I might--
        Chairman Cornyn. The only other thing--
        Mr. Feingold. That is exactly what happened with Paez and
    Berzon. There was a majority, a bipartisan majority, at all
    times prepared--
        Chairman Cornyn. But they were confirmed, right?
        Ms. Greenberger. Well, and in fact, Senator Cornyn--
        Chairman Cornyn. Excuse me, excuse me. I am not through. I
    still have the floor.
        The other thing is that Senator Durbin said 123 to 2 is not
    bad for President Bush. The thing is I find it very difficult
    to reconcile that sort of statistic, if indeed we are supposed
    to pay attention to that kind of scorecard, with some of the
    caricatures that I have heard of President Bush's nominees as
    being out of the mainstream or right-wing ideologues or
    otherwise unsuitable for confirmation.
        Now, as we all recognize, Senators are completely within
    their rights to vote against a nominee, and I will forever
    fight to make sure that that right is preserved, but I think
    123 to 2 is hardly indicative to my mind of some sort of right-
    wing or out-of-the-mainstream ideology espoused by President
    Bush's nominees. And I understand that we may differ--I know
    that we differ.
        Senator Schumer?
        Senator Schumer. Thank you, Mr. Chairman.
        I cannot think of a single Democrat the President has
    nominated--maybe they have--to the court of appeals. If he were
    nominating people without regard to ideology, you would think
    there would be a few. I do not know any--and Ms. Greenberger is
    here from the pro-choice point of view--it is not a litmus test
    for me, but I cannot think of one nominee who is pro-choice
    whom he has nominated who has said so.
        The person who has the ideological litmus test here is the
    President, and we all know it. the people who are here from the
    left know it, and the people who are here from the right know
    it.
        Chairman Cornyn. Well, if the Senator will yield, what I
    just said is that we do not all know it. I understand that that
    is your position.
        Senator Schumer. Yes. I think that everybody--any objective
    observer who looks--but I would ask the panel to name for me a
    Democrat the President has nominated to the court of appeals.
        Mr. Eastman. I will take that. Roger Gregory from the
    Fourth Circuit. And I have to weigh in. I just--
        Senator Schumer. Okay. Have you got another one?
        Mr. Eastman. Yes. Senator Feingold has introduced--
        Chairman Cornyn. Excuse me, Professor Eastman.
        I do want my very first hearing not to break into a free-
    for-all--
        Mr. Eastman. He asked.
        [Laughter.]
        Chairman Cornyn. --so I must--
        Ms. Greenberger. Could the woman who raised her hand get
    any special privilege?
        Chairman Cornyn. No; no hands raised. Let us do it on a Q
    and A, and certainly if Senator Schumer wants to recognize
    anybody, we will come back if we have time.
        Senator Schumer?
        Senator Schumer. Okay. And Gregory we know was first
    nominated by President Clinton and held up for what many would
    think were pretty awful reasons.
        How about another one? I mean, if we are doing this non-
    ideologically, there ought to be some scattering, and I do not
    know this.
        I want to ask the nominees, do you think Democratic
    nominees and Republican nominees to, say, the D.C. Circuit vote
    the same way because they are interpreting the law in a neutral
    way?
        Mr. Calabresi. May I comment, Senator?
        Senator Schumer. Yes.
        Mr. Calabresi. It seems to me if one looks at the past that
    President Clinton, I believe, was able to successfully appoint
    about 370 individuals to the lower Federal courts.
        Senator Schumer. Right.
        Mr. Calabresi. My recollection is that it was minusculely
    different from the number of people that President Ronald
    Reagan appointed in 8 years to the lower Federal courts.
        I think the argument that President Clinton did not have
    the same opportunity that President Reagan had to make an
    impact on the Federal courts just fails before the facts.
        Senator Schumer. Yes. But that is not the point I am making
    here. President Clinton's nominees were not--again, by general
    view; let us take ideology out of this and make it the middle
    of where the American people are, not what each of us calls
    ``mainstream,'' because what some of us would call mainstream
    on the panel is different--and most of Clinton's nominees--
    there were a few who were very liberal, but most tended to be
    moderate to moderate-liberals.
        Mr. Fein. I am not sure that that is accurate.
        Senator Schumer. The vast majority of President Bush's
    nominees have been hard, hard right. And again, that we know
    has happened.
        But I want to ask the panel, the four more conservative,
    if--let us just assume that a President is making ideological
    choices and is nominating people without fail who are way over
    to one side--it could be far left or far right--should the
    Congress question them, should the Senate question them on
    their views? Should the Senate use ideology as a test, or
    should the President basically get his way as long as the
    nominees are regarded as good legal thinkers and have no moral
    opprobrium in any way attached to them?
        Mr. Fein. Mr. Senator, that was practiced under Franklin
    Delano Roosevelt. After his court-packing plan failed, he
    nominated all hard New Dealers, those who supported his court-
    packing plan. The Senate confirmed every, single one, and--
        Senator Schumer. Well, I am asking you your view--is that
    right?
        Mr. Fein. And I believe that was correct.
        Senator Schumer. You do.
        Mr. Fein. I believe the President won the election
    overwhelmingly over Alf Landon. That was the rules of the game.
    The people knew--
        Senator Schumer. Sort of the way Bush won over Gore
    overwhelmingly?
        Mr. Fein. --no, no--and he campaigned as you well know in
    1936 against Justices who said we are taking a buggy-horse
    approach to interpreting the Constitution. And the Constitution
    did not collapse. It thrived. And I do not know that anyone
    views the Roosevelt appointees as being the waystation for the
    destruction of our constitutional system.
        Senator Schumer. Go ahead, Marcia--so you would think that
    that is fine, and if President Roosevelt--let us just assume
    it--did all New Dealers--and I would argue that the New Deal,
    it was more in the consensus of America post-1938 than Scalia
    and Thomas are within the consensus of America in 2002, and the
    President has said those are the types of judges he wants--
        Mr. Fein. Scalia was confirmed unanimously.
        Senator Schumer. I understand. That is not the point.
        Mr. Fein. But he is an extremist, and he got a unanimous
    vote?
        Senator Schumer. Well, he got a unanimous vote because then
    the Court probably needed some balance. I would have voted for
    a Scalia if there were eight Brennans on the Court. I would not
    vote--
        Mr. Fein. No, there were not eight Brennans at the time.
    The Chief Justice was Mr. Rehnquist.
        Senator Schumer. I understand. I am just making the point--
    I am asking you the question--you are not answering; you are
    giving other facts like the unanimous approval--so let me just
    finish with Mr. Fein.
        So you are saying that if a President nominates people to
    one extreme--let us assume your argument that Roosevelt did--
    that the Senate should not inquire about their judicial
    philosophy, their ideological views, and just appoint the
    President's nominees, or you are not saying that?
        Mr. Fein. No, I am not saying that. I think the Senate--
        Senator Schumer. Okay. Let me just ask you some questions.
    Do you think it is legitimate to make such inquiry?
        Mr. Fein. I think it is legitimate to make an inquiry so
    that the people can hold the President accountable and know
    exactly what kind of Justices he is nominating; absolutely.
        Senator Schumer. Okay.
        Does everyone else agree with that?
        Mr. Calabresi. I think it is legitimate for Senators to
    take ideology into account, but I do not think it is legitimate
    to filibuster nominees who clearly enjoy the support of a
    majority of the Senate, and I do not think there is any
    precedent for that in 214 years of American history.
        Ms. Greenberger. Well, I have to say that that is
    absolutely factually inaccurate.
        Senator Schumer. Of course it is.
        Ms. Greenberger. And with respect to Paez and Berzon,
    Senator Schumer, whom you raised, there was a filibuster. Let
    us step back for a minute and remember that President Clinton
    was not even sending up names that he did not think were going
    to get 60 votes to start with, so the whole universe was not as
    controversial a universe to begin with. With respect to now
    judges Paez and Berzon, when there was a filibuster--and to go
    back, Senator Cornyn, to your point--there was a filibuster, it
    was on ideology. There are statements of the leader of the
    filibuster, then--Senator Smith; it was all about ideology.
    Senator Frist voted against invoking cloture.
        Chairman Cornyn. If they were confirmed, how can you say
    there was a successful filibuster?
        Ms. Greenberger. I did not say it was a successful
    filibuster, but I did say--
        Senator Schumer. How long did it take to confirm them?
        Ms. Greenberger. With respect to Judge Paez, it was over 3
    years from start to finish, and with respect to Judge Berzon,
    it was a slightly shorter period of time. But still--
        Senator Schumer. So in other words, Ms. Greenberger, if we
    were using the precedent, then Senator Cornyn and our friends
    on the other side should be estopped from complaining until it
    is 3 years--they are complaining when it is 3 months.
        Ms. Greenberger. I just said the current leader of the
    Senate, Senator Frist, voted against invoking cloture in that
    context with respect to Judge Paez, and therefore, his whole
    approach was not consonant, Senator Cornyn, with what you were
    suggesting, that if there were a majority willing to confirm,
    there should not be a filibuster. He continued to support a
    filibuster, and the ultimate vote showed a very overwhelmingly
    strong vote to confirm for both.
        So the leadership of the Senate currently, just a very
    short period of time ago, clearly was taking a different
    ideological and philosophical view about the rules of
    filibuster, how they apply with respect to lifetime
    appointments, with respect to judicial appointments, with
    respect to circumstances where it was obvious from the
    beginning that those nominees had substantial majority support,
    far more substantial majority support than some of the judges
    who I must say I do not congratulate the Senate for confirming,
    such as Judge Shedd, Judge Sutton, and others who have very,
    very strong negative votes.
        Senator Schumer. Okay. I have a question of Professor
    Gerhardt. I am sort of befuddled again. It seems to me this is:
    Here is the result we want, and therefore we are making an
    argument for it.
        In other words, I think the panel sort of buttresses my
    argument that we do not have this neutral machine that makes
    law. This panel is great proof of it.
        But I am totally befuddled by the idea that it is
    unconstitutional to filibuster a judge but not unconstitutional
    to filibuster legislation. I would also like to know if there
    is any difference between--couldn't committees be
    unconstitutional? If a majority on a Committee decided to vote
    against a judge, is that okay?
        And I ask the second question to all the panel: If, then,
    the whole Senate wanted to be for the nominee and there were a
    majority vote there.
        So, first, Professor Gerhardt. This is taking the results
    you want and twisting the legal argument to make it right. It
    is the most absurd thing I have ever seen, and I think it is
    almost a joke. Do you see any difference between the
    unconstitutionality? Why is majority vote more sacred in
    judicial appointment than in legislation?
        Mr. Gerhardt. I do not think there is. I do not think the
    Constitution recognizes any such distinction. In fact, as I
    suggested earlier, there is only one Appointments Clause. Every
    nomination would have to be the beneficiary of this rule if it
    were to apply.
        Senator Schumer. That is even a better argument, thank you.
    That is why you are the professor and I am the Senator.
        Mr. Gerhardt. Thank you.
        Senator Schumer. Appointment to the executive branch--by
    the way, I missed some of this--are the people who are for this
    arguing that a filibuster and appointment to the executive
    branch would be equally unconstitutional?
        Mr. Fein. Mr. Senator, I do not think that it makes any
    sense to try to apply necessarily the same rule to all
    appointments or all votes. I pointed out earlier that
    intellectual tidiness is not the earmark of the way our
    Constitution has been interpreted and applied. You have to ask
    what is the purpose of the voting rule and whether it is
    consistent with the spirit and design of the Constitutional
    architects.
        With regard to legislation, everyone knows the Founding
    Fathers were worried about a hurricane of legislation. They
    were erecting barrier after barrier to prevent legislation from
    being enacted. So you can argue reasonably plausibly that a
    supermajority vote that tries to block legislation is
    consistent with that design.
        There is nothing comparable with regard to concern over
    appointing and confirming judges too fast with majority votes
    or otherwise. So it is thoroughly consistent to say that a
    filibuster rule can be overridden by a simple Senate majority
    on judges, but not on legislation.
        Senator Schumer. Didn't the Founding Fathers, in objection
    to Wilson's proposal that the President choose the judiciary,
    say that they were worried that the President would have too
    much power, and isn't that in the same spirit? They did not say
    51 is enough to check the President's power in this, but 41 is
    not.
        Mr. Fein. No. I do not think the Founding Fathers--
        Senator Schumer. You are not being a very strict
    constructionist here, Mr. Fein.
        Mr. Fein. Right. No, I am not trying. I do not think you
    will find answers--
        Senator Schumer. I know you are not trying.
        Mr. Fein. --to the constitutional questions that are
    difficult by reading a dictionary and looking only at the text,
    because the Constitution has additional elements that have to
    be consulted if it is to have any vibrancy; otherwise the
    Constitution would be 30,000 pages long to get into all the
    detail that you have adverted to.
        Senator Schumer. You are not being a very strict
    constructionist, though, are you?
        Mr. Fein. I will not be a strict constructionist when I
    think it serves the goals of the Constitution. I am not
    embarrassed about that. And we should not be fetish about
    particular slogans.
        With regard to the constitutional role of the Senate--
        Senator Schumer. We will quote you on that at some other
    hearing sooner or later.
        [Laughter.]
        Mr. Fein. Any time you want.
        I testified, by the way, in favor of your proposal to have
    sentence enhancements for hate crime statutes. Maybe you were
    more endearing to me at that time than now.
        [Laughter.]
        Senator Schumer. I do not know where I went wrong before.
        Mr. Fein. Well, that makes two of us.
        [Laughter.]
        Mr. Fein. With regard to the entrustment to the Senate of a
    confirmation role, there was no suggestion in the Federalist
    papers that a majority was not sufficient to perform the task
    of weeding out for cronyism, incompetence, or corruption. I
    think that is where the explanation comes as to why the
    President was not given the sole power. Hamilton explains that
    in 76 of Federalist Papers.
        Mr. Eastman. In fact, Senator, the debate went even
    further. James Madison had proposed at one point to actually
    require a two-thirds vote to disapprove a Presidential
    nomination. That did not succeed. But the vote was not to go
    the other direction but in fact whether to give exclusive power
    to the President or to have some other check.
        The notion that a minority of the Senate would be
    sufficient to stop a Presidential nominee and that that could
    be locked into place forevermore through a Senate rule--and I
    will just quote Erwin Chemerinsky--
        Senator Schumer. Well, it is not forevermore. The Senate
    can chance its rules in a minute.
        Mr. Eastman. But that is what the fight is about. And the
    constitutionality of the supermajority two-thirds requirement
    in the Senate rule to stop the change of the filibuster rule--
    and I will quote Erwin Chemerinsky; I have been debating him
    every week for 3 years--
        Senator Schumer. Who is that? I did not hear.
        Mr. Eastman. --and we have agree on hardly anything, and on
    this we agree--entrenchment of the filibuster violates a
    fundamental constitutional principle. One legislature cannot
    bind subsequent legislatures. And if this body does not take
    that seriously--he goes further in that same article to suggest
    that disgruntled nominees or Members of the Senate themselves
    whose votes are diluted by that unconstitutional rule could
    file suit and--
        Senator Schumer. How about committees? How about when a
    Committee blocks a judge from coming to the floor? Let us say
    the Judiciary Committee votes 15 to 4 against letting someone
    coming to the floor, and 51 Senators sign a letter saying bring
    that judge to the floor. Is that unconstitutional?
        Mr. Calabresi. There is no question that committees are
    constitutional. First of all, the British Parliament had
    committees. The Framers were aware of that when they passed the
    Rules of Proceedings Clause. They clearly authorized Congress
    to set up committees and to set up rules that would structure
    deliberation and debate.
        The filibuster itself--
        Senator Schumer. Why isn't Mr. Fein's argument, which is
    sort of results-oriented, that this is what the Founding
    Fathers were looking for, apply equally to committees despite
    what the British Parliament did?
        Mr. Kmiec. A majority of the Senate--
        Mr. Calabresi. Because the Rules of Proceedings Clause--
        Senator Schumer. Let Professor Calabresi finish, and then I
    will call on you, Dean Kmiec.
        Mr. Calabresi. The Rules of Proceedings Clause authorizes
    Congress to set up committees and to set up rules of that kind.
    The filibuster of legislation--
        Senator Schumer. Well, no--wait a second, Professor. It
    authorizes committees, and it authorizes rules, okay? It does
    not say that the committees come from any different genesis
    than rules. But you are saying the rules are unconstitutional,
    but the committees are not, even though the formulation of each
    is majority should rule. It makes no sense.
        Mr. Calabresi. Rules which foster deliberation and debate
    are perfectly permissible.
        Senator Schumer. Wait a second--
        Mr. Calabresi. A rule which actually changes the voting
    outcome, which raises the threshold from 51 to 60 votes to be
    confirmed to an office, is not constitutional and represents a
    major extension of the filibuster.
        We have had the legislative--
        Senator Schumer. Wait a second, Professor Calabresi. Then,
    what you should be saying is--just to be logical here instead
    of just being totally outcome-determinative--is, then, that
    committees should be allowed to debate but not block someone
    from coming to the floor, that it should be a recommendation,
    because you said rules of debate are okay but not rules that
    block. A 15 to 4 vote in this Committee will prevent a judicial
    candidate from getting a majority vote on the floor of the
    Senate. I do not see any difference. And here you are, coming
    up with a construct that seems to be almost, with all due
    respect, made out of thin air, because you want to defend one,
    and you do not want to defend the other.
        My guess--and you will disagree--is that if the Committee
    blocked it, and good Senator Cornyn came in and said committees
    blocking nominees is unconstitutional, you would be making
    exactly the opposite argument.
        Go ahead.
        Mr. Kmiec. In all fairness, Senator, I do not think anyone
    is saying that the Committee structure is unconstitutional. I
    do not think anyone made an argument here this afternoon that
    the filibuster was unconstitutional.
        I think the argument that has been made--and there may not
    be a consensus here, but there is in fact a good body of
    Supreme Court opinion and not just the commentaries of William
    Blackstone--that one previous Senate cannot impose rules on a
    subsequent Senate without giving that subsequent Senate and a
    majority of that subsequent Senate, including new Members such
    as the Chairman of our Subcommittee this afternoon, the
    opportunity to pass upon those rules.
        There is a continuing constitutional injury. It is an
    injury not just to the Subcommittee chairman; it is an injury
    to the nominees who the President has put forward, and that is
    an injury to the separation of powers--and frankly, there is an
    injury to the people who elected the new members of the Senate
    who are part of this body, because part of the whole process of
    the democratic system is accountability.
        Senator Schumer. So, Dean Kmiec, you are saying that each
    rule is illegitimate if it is passed on from one Senate to the
    next regardless.
        Mr. Kmiec. That is correct.
        Senator Schumer. Okay. So you are not particularly holding
    the filibuster rule to be any worse than the rule on committees
    or the rule on this or the rule on that. And yet if this Senate
    were just to ratify its existing rules every 2 years, which I
    think we did in the House--
        Mr. Kmiec. In the House, you did; in the House, you did.
        Senator Schumer. --then that would be okay?
        Mr. Kmiec. Then you would in my judgment meet the
    constitutional standard.
        Senator Schumer. Okay. Fair enough.
        Mr. Kmiec. But that is where the injury is, and it is an
    injury now that is compounding our present problem.
        And I would just like for a minute to say something in
    favor of consensus which I know is unpopular. Senator Specter
    was here earlier in the afternoon, and he put forward a
    proposal which he called a ``protocol.'' It is a protocol that
    I think, if you explained it to the American people, they would
    readily understand. They would say what does the Constitution
    provide? The Constitution provides that the President shall
    nominate, and it provides that the Senate shall give its advice
    and consent. And the people would likely ask: how can that be
    done reasonably and fairly within a reasonable period of time?
        What Senator Specter's protocol is about is putting that
    framework in place, getting beyond the blame game. We both can
    do numbers. We can do our separate table of end-run numbers as
    to who did the worst injury in terms of denying hearings or
    defeating candidates within the committee.
        The real constitutional injury here is failing to act
    within a reasonable time whoever is in the Presidential office
    and the constitutional injury that we have just talked about,
    and that is the entrenchment of rules being imposed from one
    body onto the next.
        Senator Schumer. Which could be changed by majority vote.
        Mr. Kmiec. And should be changed by majority vote in order
    to--
        Senator Schumer. Right. That is why--I do not know why you
    say ``imposed,'' because then it has gone along with the doing-
    ness, and the 51 Senators of the majority could propose changes
    in the rules.
        Mr. Kmiec. And right now, it is being manipulated--they
    could and they should, and Lloyd Cutler, the former White House
    counsel to President Carter, proposed just that. And I think
    one of the salutary things that could come out of this
    afternoon's hearing is if the transcript from this hearing
    would be given over to the Senate Rules Committee and indeed a
    change in Rule XXII would be proposed, because that would be
    the beginning of healing of a process for a system that is in
    fact broken.
        Ms. Greenberger. Could I just make sure there is no idea of
    consensus on that?
        Chairman Cornyn. Let me--no--excuse me, excuse me, excuse
    me. I have the floor.
        Senator Schumer, I wanted to inquire about how much more
    you have. We have been doing 10-minute rounds, and I have given
    you 20 minutes--
        Senator Schumer. I was going to let Ms. Greenberger--sorry.
    I apologize.
        Chairman Cornyn. --and I want to give you plenty of time--
        Senator Schumer. I will let Ms. Greenberger make the last
    comment from my round of questions.
        Chairman Cornyn. That is fine. Thank you very much.
        Ms. Greenberger. Very quickly, of course, the nub of the
    controversy here is that this particular Senate rule requires a
    two-thirds vote to change it, not a majority vote to change it.
    So it would be changing the rules in a way that was
    inconsistent with the rules after the game, and that is the
    missing piece, I think, of the suggestion that makes it such a
    controversial suggestion and one that neither Professor
    Gerhardt nor I could support when we discussed it before.
        Mr. Kmiec. It was not controversial for Lloyd Cutler, and
    it is not controversial for me.
        Ms. Greenberger. Well, that may be. I cannot speak--
        Senator Schumer. It is to me, because it basically says the
    President gets whatever he wants; it is not a compromise. You
    just wait a few months, and he gets it.
        Chairman Cornyn. Very well. That was the last question and
    comment, and with that, I would like to thank all of the
    distinguished lawyers and scholars who comprise this panel as
    well as the preceding panel of my colleagues, our colleagues,
    in the Senate.
        I think we have all found this fruitful, and certainly
    important constitutional questions and issues have been raised
    and debated, and I was not laboring under the hope, or
    actually, the expectation--maybe the hope, but not the
    expectation--that we would finally settle that today.
        I want to make sure that I express my gratitude first to
    Senator Hatch for his leadership on the Senate Judiciary
    Committee. I do not think, regardless of who leads as Chairman
    of the Judiciary Committee, it is ever an easy job. I think I
    remember Senator Biden saying he is sure glad that he is no
    longer Chairman of the Judiciary Committee. But I believe we
    owe Chairman Hatch a debt of gratitude for his leadership and
    for leading us through difficult times for the committee.
        I would like to express my gratitude to the staff who have
    helped us get ready for this hearing, including the staff of
    Senator Feingold, and all those who have worked so hard to try
    to allow us to tee-up the important questions that we have
    addressed here today.
        I know that we will have more hearings, and we will
    continue to have debate about this and other important
    questions facing our Nation, particularly as they regard the
    Constitution, as Senator Feingold alluded to earlier and as I
    alluded to earlier.
        And I look forward to future successful hearings and
    bipartisan cooperation. This is one of the few hearings that I
    think we have ended where everybody sort of had a smile on
    their faces.
        Senator Schumer. Oh, yes. And I want to thank the
    witnesses. They have been here for a long time.
        Chairman Cornyn. Absolutely.
        Senator Schumer. I consider this fun; I hope you do.
        Chairman Cornyn. And with that, this hearing of the Senate
    Subcommittee on the Constitution, Civil Rights, and Property
    Rights is hereby adjourned.
        [Whereupon, at 6:01 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]
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