[Congressional Record Volume 149, Number 174 (Tuesday, November 25, 2003)]
[Senate]
[Pages S15952-S15954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     JUDICIAL CONFIRMATION PROCESS

  Mr. CORNYN. Madam President, I wish to speak for the next few minutes 
about the judicial confirmation process, now that we have passed the 
Medicare bill, which represents perhaps the single largest 
accomplishment of this session--a session filled with many important 
accomplishments. I want to revisit the judicial confirmation process 
because I think it is perhaps the one issue that has the greatest 
potential for constructive action in this body, and the one issue that 
has the most potential for destruction of constructive action in this 
body.
  The American people have seen accusations fly back and forth in the 
Senate as we have observed partisan minority filibusters of President 
Bush's judicial nominees. As a relatively new Member of the Senate, I 
have no personal stake in these grievances over past perceived slights 
or actions. In fact, as the Chair knows, in April, all 10 freshmen 
Senators wrote a letter to the Senate leadership asking that we have a 
fresh start when it comes to the way we approach this process because, 
as we all know, any tactic or strategy used by a partisan minority now 
to obstruct President Bush's nominees, if successful, if allowed to 
proceed, will no doubt be sought to be used in the event a Democrat 
takes the White House and Republicans find themselves in the minority 
of this body.
  I ask unanimous consent that the letter we freshmen Senators wrote to 
the leadership be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                   Washington, DC, April 30, 2003.
       Dear Senators Frist and Daschle: As the ten newest members 
     of the United States Senate, we write to express our concerns 
     about the state of the federal judicial nomination and 
     confirmation process. The apparent breakdown in this process 
     reflects poorly on the ability of the Senate and the 
     Administration to work together in the best interests of our 
     country. The breakdown also disserves the qualified nominees 
     to the federal bench whose confirmations have been delayed or 
     blocked, and the American people who rely on our federal 
     courts for justice.
       We, the ten freshmen of the United States Senate for the 
     108th Congress, are a diverse group. Among our ranks are 
     former federal executive branch officials, members of the 
     U.S. House of Representatives, and state attorneys general. 
     We include state and local officials, and a former trial and 
     appellate judge. We have different viewpoints on a variety of 
     important issues currently facing our country. But we are 
     united in our commitment to maintaining and preserving a fair 
     and effective justice system for all Americans. And we are 
     united in our concern that the judicial confirmation process 
     is broken and needs to be fixed.
       In some instances, when a well qualified nominee for the 
     federal bench is denied a vote, the obstruction is justified 
     on the ground of how prior nominees--typically, the nominees 
     of a previous President--were treated. All of these 
     recriminations, made by

[[Page S15953]]

     members on boths sides of the aisle, relate to circumstances 
     which occurred before any of us arrived in the United States 
     Senate. None of us were parties to any of the reported past 
     offenses, whether real or perceived. None of us believe that 
     the ill will of the past should dictate the terms and 
     direction of the future.
       Each of us firmly believes that the United States Senate 
     needs a fresh start. And each of us believes strongly that we 
     were elected to this body in order to do a job for the 
     citizens of our respective states--to enact legislation to 
     stimulate our economy, protect national security, and promote 
     the national welfare, and to provide advice and consent, and 
     to vote on the President's nominations to important positions 
     in the executive branch and on our Nation's courts.
       Accordingly, the ten freshmen of the United States Senate 
     for the 108th Congress urge you to work toward improving the 
     Senate's use of the current process or establishing a better 
     process for the Senate's consideration of judicial 
     nominations. We acknowledge that the White House should be 
     included in repairing this process.
       All of us were elected to do a job. Unfortunately, the 
     current state of our judicial confirmation process prevents 
     us from doing an important part of that job. We seek a 
     bipartisan solution that will protect that integrity and 
     independence of our Nation's courts, ensure fairness for 
     judicial nominees, and leave the bitterness of the past 
     behind us.
           Yours truly,
         John Cornyn, Lisa Murkowski, Elizabeth Dole, Norm 
           Coleman, Lamar Alexander, Mark Pryor, Lindsey Graham, 
           Saxby Chambliss, Jim Talent, John E. Sununu.

  3aMr. CORNYN. Madam President, I, frankly, think it would be just as 
wrong for that to happen as I do for a partisan minority to stand in 
the way of a bipartisan majority of the Senate, who stand ready to 
confirm many of President Bush's fine nominees.
  I guess just when you think this process cannot get any worse, it 
does. The credibility of this process has recently been called into 
question by the disclosure of several internal memos written for 
Democratic Senators on the Judiciary Committee.
  Madam President, as the Chair knows, and as all Members of this body 
know, there is currently an investigation ongoing by the Sergeant at 
Arms into the circumstances under which these memos became public to 
determine whether there was any wrongdoing in obtaining those memos, 
and, of course, we must withhold judgment until that investigation is 
complete and the facts are made known to the Members of this body. I 
trust we will do whatever the law and justice requires, and that we 
will follow the truth, wherever it may lead in the investigation and 
take appropriate action. I certainly support that.
  These memos are available on the Web at http://
fairjudiciary.campsol.com.
 The fact is, these memos have now entered into the public domain, and 
I think it is important that we address these memos and what, in fact, 
they confirm about the obstruction and destructive politics that have 
taken hold of the judicial confirmation process and which have left me 
concerned that there is no foreseeable end to the current gridlock.
  Let me go over a few of the examples. You will see here on this chart 
to my left, one internal memorandum, dated November 2001. It was 
reported that liberal special interest groups urged Senate Democrats to 
oppose the nomination of Miguel Estrada ``because he has a minimal 
paper trail, he is Latino, and the White House seems to be grooming him 
for a Supreme Court appointment.''
  Such comments discredit the claim made by those who object to this 
nomination and who oppose Miguel Estrada's confirmation to the DC 
Circuit Court of Appeals and who say that ethnicity played no part in 
their obstruction. This memo stands in stark contrast to that claim. 
But the one thing I hope we can all agree to is that the Senate should 
not make any decisions about judicial nominees, or anyone else, period, 
based on their ethnicity or their race. Such actions demean not only 
this body but all of us, and the American people did not elect us to do 
any such thing.
  Yet this memo makes clear--or at least adds credence to the argument 
that but for his ethnicity Miguel Estrada would be on the Federal bench 
today.
  In another memo, dated November 7, 2001, Democratic staff asked the 
question, ``Who to fight?'' Which of President Bush's judicial nominees 
should be opposed? The answer: Texas Supreme Court Justice Priscilla 
Owen. Why? Because `` . . . she is from Texas and was appointed to the 
Supreme Court by Bush, so she will appear parochial and out of the 
mainstream.''
  I served for 4 years on the Texas Supreme Court with Priscilla Owen. 
I know Priscilla Owen. It is obvious to me that the people who wrote 
this memorandum do not.
  Nevertheless, they decided to use the terms ``parochial'' and ``out 
of the mainstream,'' and to suggest that simply because she was from 
Texas, she could be cast in an ignorant and unfair stereotype, which 
should never be appropriate, even in discussing judicial nominees.

  I believe firmly that these nominees should be judged on their 
merits, not on their home State, and certainly not on the basis of any 
ignorant or ill-informed stereotype.
  An April 2002 memorandum indicates some Democrats wanted to delay 
judicial nominees, not because of any lack of qualifications but 
because they wanted to influence the outcome of particular cases, a 
very troubling suggestion.
  According to one memorandum, Elaine Jones of the NAACP Legal Defense 
Fund would like the committee to hold off on any Sixth Circuit nominees 
until the University of Michigan case regarding the constitutionality 
of affirmative action and higher education is decided en banc by the 
Sixth Circuit. The memo writer appears to have understood that such 
tactics were highly improper but chose to proceed with those plans 
anyway. The memorandum expressed concern about the propriety of 
scheduling hearings based on the resolution of a particular case but 
went on to say, ``nevertheless, we recommend that Sixth Circuit nominee 
Julia Scott Gibbons be scheduled for a later hearing.''
  Even acts that are widely recognized as improper and inappropriate 
seem to have become fair game for obstructionists today.
  Not only have we seen obstruction, we have seen destruction when it 
comes to the reputation of the nominees who have been proposed by the 
President by the use of vicious ad hominem character attacks. In 
public, leading Democrat Senators have called this President's judicial 
nominees everything from turkeys to neanderthals, to kooks, to selfish, 
despicable, and mean.
  In memos, Democrats--the ones in the minority who obstruct the 
President's consideration of his nominees--seem to scrape the bottom of 
the barrel when it comes to vituperation, describing these widely 
respected nominees as alternately ugly, heartless, and even, as was 
reported in today's edition of the Washington Times, Nazis. This 
language is deplorable and simply has no place in the Senate.
  After reading these offensive memos, we cannot, nor should America, 
harbor any further illusions about what is going on here. The current 
mistreatment of nominees is not politics as usual, it is politics at 
its worst and exposes those who would march in lockstep with 
ideologically driven special interest groups whose main purpose is to 
defeat these nominees--and not just defeat them but destroy their 
reputation.
  I am sad to say that as long as these tactics continue without the 
condemnation they deserve, we will see only further degradation and a 
downward spiral of the judicial confirmation process. In the end, we 
all know who will pay the price. It is the American people who will pay 
the price.
  Just so we understand why this is so critical to this process, why 
these memos, and what they reveal is so unfortunate and deplorable, in 
one of the memos it was made clear that one of the special interest 
groups that was monitoring this process would ``score this vote in the 
2003 Congressional Record.'' In other words, these special interest 
groups are not only dictating the tune, expecting Senators to dance to 
that tune, but told that if they do not, they will be punished because 
their vote will be scored in mass mailings and advertising and other 
publications issued by the various special interest groups in the next 
election. This reveals something that should be very disconcerting to 
everyone and certainly to the American people.
  The question that perhaps people who are paying attention, if there 
are people paying attention to my remarks today, would ask is: So what? 
What

[[Page S15954]]

does this mean? Why should we care? In the brief moments remaining, I 
will address why the American people should care and why we should 
care.
  We have too often seen an unelected, lifetime-tenured judiciary make 
decisions based on dubious constitutional grounds that would never 
enjoy the support of the vast majority of the American people. Just one 
that comes to mind is a recent ruling of the Ninth Circuit Court of 
Appeals saying that the words ``under God'' in the Pledge of Allegiance 
may not be uttered in classrooms because it violates the 
first amendment separation of church and state.

  That does not make any sense. It certainly cannot be the law. Yet we 
have lifetime-tenured judges who are stating that as if it were the 
law. Thank goodness that decision will be reviewed, and I hope 
expeditiously reversed, by the U.S. Supreme Court.
  We have all sorts of strange things happening today. One recent 
article caught my attention: When current Supreme Court Justices in a 
recent speech said the decisions of other countries' courts should be 
persuasive authority in America's courts when interpreting what our law 
is, we ought to look to the law of the European Union or other 
countries, perhaps, to guide these American judges in interpreting 
American law and the American Constitution. Justice Breyer recently 
found useful, in interpreting the American Constitution, decisions by 
the Privy Counsel of Jamaica and the Supreme Courts of India and 
Zimbabwe. Later, Justice Kennedy of the United States Supreme Court 
cited a decision of the European Court of Human Rights in a decision 
handed down this month. Justice Ginsburg, joined by Justice Breyer, 
cited a decision by the International Convention on the Elimination of 
All Forms of Racial Discrimination in a recent case. It goes on and on.
  Anyone who is paying attention to what Federal judges are doing today 
and what they view in terms of their obligation to interpret the law 
have to ask the question: What is going on? What would James Madison, 
Alexander Hamilton, Thomas Jefferson--what would our Founding Fathers 
say about what is happening in our Federal Judiciary today? We all know 
the answer. They would be shocked. We should be shocked as well.
  Finally, this is an important debate because this determines what 
kind of country we are and what kind of country we will become. My hope 
and prayer is that in the intervening 2 months, when we come back, this 
debate will take on a new civil tone, we will deplore and avoid these 
tactics of the past and embrace the fresh start we so earnestly sought 
just a few short months ago.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.

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