[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




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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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