[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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