[Congressional Record Volume 150, Number 133 (Thursday, November 18, 2004)]
[Senate]
[Pages S11461-S11464]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL SELECTION PROCESS
Mr. CORNYN. Mr. President, recently there has been a lot of
discussion about, not just the role of the judiciary in our democracy,
but the process by which judges are selected. To me, this all boils
down to something that Daniel Webster once said when he opined that
``justice is the greatest desire of man on Earth.'' It is, in fact, the
judges, the ones who wear the black robe, the men or women who serve on
local or State or Federal benches who are the ones with whom we
identify that common yearning for justice.
Unfortunately, here in the Senate over the last couple of years, we
have gone through an experience that not only reeks of injustice but
also of unfairness and, indeed, rises to the level of
unconstitutionality when it comes to the filibuster used against
President Bush's judicial nominees.
Never, before these last 2 years, has a nominee for a Federal court,
whether it is the Federal district court or circuit court or the United
States Supreme Court, been blocked by the use of a filibuster when
there was a bipartisan majority of the Senate who stood ready to
confirm that judge--never before the current Congress, dating back now
2 years.
We all know the judiciary plays a critical role in our form of
government. As high school students, or perhaps even earlier, we learn
that our three branches of government play important but distinct roles
in our constitutional democracy. It is the judiciary, which at one time
in our Nation's history has been called the least dangerous branch,
that has produced some of the most dangerous decisions, at least so far
as it concerns our right to self-government. What I mean by that is
when we see courts strike down the Pledge of Allegiance because
schoolchildren cannot say the words ``under God'' when they pledge
allegiance to the flag; when we see county clerks, indeed, when we see
judges themselves
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authorize the issuance of marriage licenses to same-sex couples on TV
and across our country; and when we see courts, on the basis of
lawsuits that have been filed, tell military bases that they cannot
grant access to their facilities to the Boy Scouts of America, we know
these are not a product of a vote of the people.
In each of those instances it is the act or the dictate of a judge, a
judge that I submit has lost any tether, any sort of anchor with the
fundamental premises upon which the power of a judge is granted.
We want to make sure in this country, I believe, whether we are
Democrats, Republicans or independents, that our judges are not
politicized. In other words, we want to make sure when we walk into a
courtroom when our case is decided that the judges have not already
made up their minds before hearing what the facts are. We want to make
sure that that judge does not have some sort of political or personal
agenda which makes it impossible for them to be fair.
But what we have seen over the last couple of years is a political
situation of the judicial selection process where good men and women
who are highly qualified to serve as Federal judges at the Federal
district court level and at the circuit court level have been not only
obstructed by this unconstitutional filibuster process, which has never
before been used in America history--what we have seen is also
character assassination. We have seen individuals who spent a lifetime
creating a reputation and developing a career as a judge totally
smeared by various interest groups whose desire it is to politicize not
only the judicial selection process but the decisionmaking process by
judges. And that is wrong.
We know, in addition to the other important judicial vacancies that
exist around this country which we have been unable to fill because of
the filibuster, that in all likelihood during President Bush's second
term of office he will have the opportunity to nominate one or more
nominees to the U.S. Supreme Court. I am sorry to say these nominees
will undoubtedly be savaged by some of these same interest groups who
are bound and determined to politicize not only the act of judging--
that quest for justice--but in fact the selection process itself.
Unfortunately, these kinds of venomous politics are something we have
come too often to expect when it comes to selecting these important
members of the judiciary.
I firmly believe we are a big and diverse country. We have people who
come from different places across the planet, who pronounce their name
in different ways, who have different traditions, creeds, beliefs. And
the great thing about this country is we can all live here in this one
place and we can argue for what we strongly believe in. We can defend
those views when they are attacked. But in the end, we settle those
disputes--maybe not change someone's mind but we settle the dispute at
least for a while by having an election.
On November 2 of this year, 60 million people not only chose to
reelect President George W. Bush, but I believe in part cast their
votes for the kind of judicial nominees this President has nominated in
the past and which he can be expected to nominate in the future.
Men and women are drawn to service in the judiciary because they
believe in that quest for justice, and they want to play an important
role in making sure that desire for justice, that quest for justice, is
satisfied, at least as much as is humanly possible, in courtrooms all
across this country.
But we know--at least in the past, based on sad experience--there are
those who will not be satisfied with an election; that people will not
put their grievances and their anger behind them but will continue to
pursue these policies of destruction and character assassination when
it comes to the President's judicial nominees. Unfortunately, these
angry individuals have not come to accept what the vast majority of
Americans have agreed is the way we should work; that is, we do our
best, we fight our best fight, we get our voters out, and then we have
an election and we resolve those differences at the election.
We have seen time and time again how these tactics have been used
shamelessly to smear some of the President's judicial nominees. It is
only logical to expect some of these same tactics, notwithstanding what
I have said, will be used again.
What we have seen in this Senate--and I believe the American people
cast a vote, at least in part, on November 2--is, as I have said,
unconstitutional filibusters. And what I believe the American people
cast a vote on on November 2, particularly when it came to the Senate
minority leader race, the race in South Dakota, was a repudiation of
obstructionism and the unconstitutional use of the filibuster to block
the President's nominees who, if allowed the simple dignity of an up-
or-down vote, would have been confirmed as I speak.
The Constitution makes clear what the role of the Senate is. That
role is to provide advice and consent. Yes. The Judiciary Committee, on
which I am honored to serve, has a responsibility to review the
credentials and background and experience, the temperament of these
nominees to make sure they understand they are not just another branch
of the legislature which is at liberty to enact through judicial edict
their personal or political or any other agenda. Our job is to make
sure they respect the separation of powers which makes the judiciary a
distinct and unique branch which is supposed to interpret the law, not
make the law.
Unfortunately, we have seen an obstinate minority in this body that
has denied this Congress the ability to provide that advice and
consent; that is, trying to elevate the de facto requirement under the
Constitution for confirmation to 60 votes by claiming that the Senate
rule which requires 60 votes to cut off debate trumped the
Constitution.
You might ask, How is that possible? The Constitution is the
fundamental law of the United States of America, and all other laws
passed, including those of Congress, are inferior to that law. If the
act of Congress is inferior to that law and when it conflicts, it must
fall, surely a Senate rule that purports to require a supermajority
vote of the Senate to confirm judges must fall when there is conflict
with the U.S. Constitution.
The Constitution provides that in specific but limited instances a
supermajority vote is required for passage, notably the ratification of
treaties and notably the amendment of the Constitution itself. But
nowhere in the Constitution is it provided that to confirm a judge,
more than a 51-vote majority is required.
That is why over these last 2 years we have heard Members on this
side of the aisle time and time again come to the Senate and say not
only is this filibuster unfair, but, indeed, blocking an up-or-down
vote by a bipartisan majority of this body is, in fact, in violation of
the fundamental law of our land.
In order to be suited by virtue of temperament to serve in elected
office, you have to be an optimist by nature, and I am. It is my
sincere hope, it is my sincere request and entreaty to our colleagues
on the other side of the aisle, that these tactics stop. They must stop
not only for the good of the Senate but out of respect to the President
who received almost 60 million votes on November 2 and out of respect
for the Constitution itself. What has happened these last 2 years is
wrong, it is unfair, and, indeed, it is unconstitutional.
Should President Bush have the opportunity to nominate one or more
judges to vacancies on the U.S. Supreme Court, it is my sincere hope we
will have learned something from the mistakes of the past. We will have
also learned there is a political penalty to be paid for obstructing
judges, for treating them unfairly and in an unconstitutional fashion.
As an astute observer not only of the human condition but also of
politics in general, I am confident that all of my colleagues in the
Senate, all 100, paid close attention to the verdict of the American
people on November 2 when it came to a referendum on whether these
unconstitutional, unfair obstructionist tactics should continue or end.
It is my hope we all got the same message and that, indeed, we will
treat the President's nominees fairly, that we will do what the
Constitution requires, that we ask the questions, make sure they are
qualified by virtue of experience, education, and temperament, that
they understand what the role of
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the judge is, and that they are not just a legislator wearing a black
robe and with lifetime tenure.
I believe on November 2 the American people rejected the tactics of
obstructionism and demonization of the President's nominees. Frankly, I
worry that the good men and women who have been nominated by the
President to serve in these important positions, after those behind
them see how they have been treated, or I should say mistreated, how
long can we expect other good men and women, when called by the
President, will answer the call only to know they will be smeared,
strung out before the world and, indeed, then, obstructed by an
unconstitutional process?
It is my hope we will have learned something over these last 2 years
and to repudiate these tactics.
I will say something to my constituents and the people who may be
listening who have contacted my office in very sincere concern for what
they have seen played out on the Senate floor and in the judicial
confirmation process.
I say to all of them, I appreciate your passion. I appreciate your
concern. I appreciate your interest in the instruments of the
Government that ultimately the people of this country control. We are
going to need the involvement, the attention, the passion of all of the
people and, indeed, we are going to need to appeal to our better angels
in the Senate and in the Senate Judiciary Committee when it comes to
the next nominees for the U.S. Supreme Court.
We all remember, whether it is the confirmation process by which
Judge Bork was blocked, by which Clarence Thomas was ultimately
confirmed--after going through a process that no one should have to go
through--my hope is we will have learned that is not the way the Senate
should conduct itself and that we will resolve among ourselves and
resolve among the American people and to the people we represent that
we will treat the President's judicial nominees fairly, that we will
treat them with dignity, and that we will provide the up-or-down vote
the U.S. Constitution demands when it comes to the confirmation of the
President's judicial nominees.
I am not suggesting for a minute that anyone violate their
conscience. Indeed, any Senator with a sincere belief that an
individual judge should not be confirmed should come to the Senate, as
no doubt they will, and explain to their colleagues why they feel so
strongly, why they conscientiously object to this nominee and invoke
their conscience. Every Senator should do that, and I trust they will.
But no one, no Senator has the right, no group of Senators has the
right, no minority has the right to tyrannize the majority of the
Senate when we stand ready in a bipartisan fashion to cast a vote, up
or down, for a judicial nominee.
I sincerely hope we will not have only learned from the mistakes of
the past when it comes to obstruction of the President's judicial
nominees, but we will conduct ourselves with the kind of dignity the
American people have come to expect from Senators and that we will
conduct ourselves uprightly, with fairness and dignity, and treat all
we come in contact exactly the same way.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I intend to speak on another matter at
some point. I see several of my colleagues are in the Senate. Senator
Levin, I believe, wishes to speak for a short time. I see Senator Bond
is in the Senate, as well.
I will take 5 minutes to say I have deep respect for my colleague
from Texas. I like him and I am pleased he is a Member of this body. I
have deep disagreement with what he has said, and I will take this
moment to respond to it.
There is a newfound passion, apparently, for providing votes for
nominees for judgeships. When I say a newfound passion, let me explain
that I was here in the 1990s. There were 60 nominees for the Federal
court that never got a vote in the Senate by a Republican-controlled
Senate. Many of them never even got 1 day of hearings. It was
unbelievable what went on with the majority party in this Chamber when
the Clinton administration was sending down nominees.
Contrary to what my colleague just indicated, this notion of
obstructionism, this is a newfound technique. You create your own
reality and debate from that reality. There was no obstructionism. This
Senate approved 201 Federal judges; 201 of the nominations for Federal
judgeships that were sent down here by this President. We held up about
10 of them.
Now, the Constitution says something about our obligations. This is
not about obstruction. It is not about unconstitutional behavior. It is
not anything of the sort. It is about those in the Senate who
understand that the Constitution says we have a responsibility when it
comes to putting someone on the Federal bench for a lifetime.
When someone sends a name to this Senate as this President did that
says, I want this man to serve for a lifetime on the Federal bench--by
the way, this person has a record of writing articles saying that his
belief is that women are subservient to men--I say, wait a second. It
is not somebody I want to sit on the Federal bench for a lifetime. I
don't happen to think that sort of thinking represents what I want to
put on the Federal bench.
We held up, I believe, 10 nominees and approved 201. We approved 93
percent of the President's requests. We are told this is
obstructionism? And now we are told, today, there is a lesson in the
South Dakota Senate race as a result of this? This ``obstructionism''
created a result in the Senate race in South Dakota of which we all
need to be mindful?
Let me state what the South Dakota Senate race was about. It was not
about obstructionism and judgeships. It was about $20 million coming
out of the basement of the White House through various orifices and
devices, directed at the minority leader in the State of South Dakota
in a campaign that in many respects, in my judgment, was shameful. But
it was not about obstructionism. It was not about judges because the
fact is we approved 201 Federal nominees sent to us by this President.
We have been extraordinarily cooperative.
Let me say again, I was here during 8 years of the Clinton
administration when 60 nominees were sent down here that never got a
vote. Some of them never got one day of hearings. Let me say that on my
behalf I want to cooperate with this President. But my colleagues and I
have constitutional responsibilities with respect to putting someone on
a Federal bench for a lifetime that involves two steps: One, the
President proposes a nominee; and, second, under advice and consent,
the Senate then makes its judgement. We have a responsibility here. It
is a constitutional responsibility.
I have read and reread that Constitution. I am proud of what we have
done. We have been extraordinarily cooperative with this President and
will continue to be so. But that does not mean all of us walk to this
Chamber with ink on our shoes and become a giant rubber stamp to say:
Me too. Yes, sign me up. OK, I am fine, I am with you. It is not our
role and it is not our responsibility.
When we approved 201 Federal nominees to the Federal court from this
President, which was 93 percent of the nominees of this President, I
think it strains credibility to somehow call this obstructionism. And
it certainly strains our sense of irony to hear those calling us
obstructionists when not very long ago there were 60 nominees, some of
which never got a day of hearings, and none of which got a vote on the
floor of the Senate.
Going forward, I think we ought to understand this: The so-called
lesson we were described moments ago about the election in South
Dakota, that is all nonsense. It is not what that was about. We believe
we have a responsibility to cooperate. We will. We also believe we have
a constitutional responsibility to use our heads, our hearts and our
minds to make good decisions about the future of this country. We will
continue to do that as well.
Incidentally, I have in my hand a record of two votes during the
Clinton administration where there were cloture motions that were
required for nominees. So this notion that somehow it is the first time
ever there was a filibuster, nonsense, that's just not true.
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I have records of both votes. It has been done before. It has been
done by the majority party. It is just when they do not get 100 percent
of their nominees, they do not get a rubber stamp coming out of this
Chamber, that somehow they have a problem with that. The American
people should not have a problem with it. The Constitution certainly
does not have a problem with it, and I do not.
I want to be cooperative, but I do not want to sit and listen to a
re-creation of reality that does not square with what we have done in
the Senate.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I wonder if I could ask unanimous consent
to line up speakers. Does the Senator from North Dakota want to do
that? And is that agreeable to the Senator from Missouri and the
Senator from Oklahoma that speakers be lined up by unanimous consent?
When I asked Senator Dorgan to yield to me for 5 minutes, he was
wondering if he could then be next in order. But I know Senator Bond is
here, too.
Mr. BOND. Mr. President, I ask for 5 minutes.
Mr. DORGAN. Mr. President, let me follow Senator Bond.
Mr. INHOFE. Yes. If I could ask the Senator from North Dakota about
how much time will he be using?
Mr. DORGAN. I intended to use 20 minutes. I would be happy to follow
the Senator.
Mr. INHOFE. I would be close to that amount of time, too, so I will
go ahead and wait. If I could lock in after the Senator from North
Dakota, that is fine.
Mr. DORGAN. Mr. President, let me suggest the Senator from Michigan
begin, and then be followed by the Senator from Missouri, and then
myself, followed by the Senator from Oklahoma. I ask unanimous consent
that be the order.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
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