[Congressional Record (Bound Edition), Volume 151 (2005), Part 2]
[Senate]
[Pages 2487-2488]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. CORNYN. Mr. President, I will spend a few minutes correcting the 
record in response to a question of press availability on Tuesday about 
whether Democrats were opposing as a caucus all of the renominated 
judges that previously were denied an opportunity for an up-or-down 
vote when a bipartisan majority stood ready to confirm them last year.
  The Senate minority leader said, ``Renomination is not the key. I 
think the question is, those judges that have already been turned down 
in the Senate''--in other words, he said these judges, even though they 
commanded the support of a bipartisan majority of the Senate during the 
last 2 years and were not permitted to have an up-or-down vote, he 
characterized those judges who have now been renominated by the 
President as judges who have, in fact, been turned down by the Senate.
  So my question is, to whom is the distinguished Democratic leader 
referring? None of President Bush's nominees have been turned down by 
the Senate--none, zero. The nominees he referred to were denied a vote 
altogether. In fact, all of these nominees would have been confirmed 
last Congress had majorities been allowed to govern as they have during 
the entire history of this country and the entire history of the 
Senate--save and except for the time when Democrats chose to deny a 
majority the opportunity for an up-or-down vote.
  So I would say, correcting the record, it is a little difficult to 
turn down a nominee, as the minority leader has said, if the nominee 
never gets an up-or-down vote on the Senate floor.
  Now, the second part I would like to correct is that when the 
Democratic leader was asked whether obstruction would create a 60-vote 
threshold for all future judicial nominees, he said:

       It's always been a 60-vote for judges. There is--nothing 
     change[d].

  He said:

       Go back many, many, many years. Go back decades and it's 
     always been that way.

  Well, we took his advice, and we did go back over the years. It turns 
out it has not always been that way. Indeed, there has never, ever, 
ever been a refusal to permit an up-or-down vote with a bipartisan 
majority standing ready to confirm judges in the history of the Senate 
until these last 2 years. Many nominees have, in fact, been confirmed 
by a vote of less than 60 Senators. In fact, the Senate has 
consistently confirmed judges who enjoyed a majority but not 60-vote 
support, including Clinton appointees Richard Paez, William Fletcher, 
and Susan Oki Mollway; and Carter appointees Abner Mikva and L.T. 
Senter.
  Specifically, the distinguished Democratic leader, yesterday, when he 
said this had been used by Republicans against Democratic nominees, 
mentioned Judge Paez. Well, obviously, that is not correct because 
Judge Paez, indeed, was confirmed by the Senate and sits on the Federal 
bench today.
  So it reminds me of, perhaps, an old adage I learned when I was 
younger, when computers were not as common as they are now, and people 
marveled at this new technology, and those who wanted to chasten us a 
little bit would say, well, they are not the answer to all of our 
concerns, and they said: Garbage in, garbage out. In other words, if 
you do not have your facts right, it is very difficult to reach a 
proper conclusion.
  So I thought it was very interesting--and I thought it was 
important--that the Democratic leader would make this claim, first of 
all, as I said, that these judges had been somehow turned down by the 
Senate when, in fact, they had been denied an opportunity for an up-or-
down vote; and, secondly, that somehow there is a 60-vote requirement, 
and it has always been that way, because the facts demonstrate that 
both of those conclusions are clearly incorrect.
  Finally, he said something I do more or less agree with, although I 
would differ a little bit on the contentious tone. He said: We're 
hopeful they'll bring them to the floor so there will be a fair fight. 
Well, I think I knew what he meant. I hope he meant a fair debate. 
Frankly, the American people are tired of obstruction and what they see 
as partisan wrangling and fighting over judicial nominees.
  In the end, that is what happened during the Clinton administration 
when, perhaps, judges who were not necessarily favored by our side of 
the aisle did receive an up-or-down vote and did get confirmed. And 
that is, of course, what happened during the Carter administration. In 
fact, that is what has happened throughout American history--until our 
worthy adversaries on the other side of the aisle decided to obstruct 
the President's judicial nominees and they were denied the courtesy of 
that fair process, that fair debate, and an up-or-down vote.
  Let me just conclude by saying this really should not be a partisan 
fight. Indeed, what we want is a fair process. We want a process that 
applies the same when a Democrat is in the White House and Democrats 
are in the majority in the Senate as we do when a Republican is in the 
White House and Republicans are in the majority in the Senate.
  We want good judges. The American people deserve to have judges who 
will strictly interpret the law and will rule without regard to some of 
the political passions of the day. A judge understands that they are 
not supposed to take sides in a controversy. That is what Congress, the 
so-called political branch, is for. That is why debate is so important 
in this what has been called the greatest deliberative body on Earth. 
But we do not want judges who make political decisions. Rather, we want 
judges who will enforce those decisions because they are sworn to 
uphold the law and enforce the law as written. Members of Congress 
write the laws, the President signs or vetoes the laws, and judges are 
supposed to enforce them but not participate in the rough and tumble of 
politics.
  So it is important that the process I have described produces a truly 
independent judiciary because we want judges who are going to be 
umpires, who are going to call balls and strikes regardless of who is 
up at bat. So I think the process we have seen over the last couple 
years, which, unfortunately, it sounds like, if what I am hearing out 
of the Democratic leader is any indication, is a process that has not 
only been unfair because it has denied bipartisan majorities an 
opportunity to confirm judges who have been nominated by the President, 
but it is one which, frankly, creates too much

[[Page 2488]]

of a political process, one where it appears that judges who are sworn 
to uphold the law, and who will be that impartial umpire--it has made 
them part of an inherently political process.
  Now, I want to be clear. It is the Senate's obligation to ask 
questions and to seriously undertake our obligation to perform our duty 
under the Constitution to provide advice and consent. But, ultimately, 
it is our obligation to vote, not to obstruct, particularly when we 
have distinguished nominees being put forward for our consideration, 
when they are unnecessarily besmirched and, really, tainted by a 
process that is beneath the dignity of the United States. Certainly 
none of these individuals who are offering themselves for service to 
our Nation's courts in the judiciary deserve to be treated this way.
  So, basically, Mr. President, what we are talking about is a process 
that works exactly the same way when Democrats are in power as it does 
when Republicans are in power. That, indeed, is the only principled way 
we can approach this deadlock and this obstructionism. I hope the 
Democratic leader--who I know has a very difficult job because he, no 
doubt, has to deal with and reflect the views of his caucus on this 
issue--I hope he will encourage his caucus, the Democrats in the 
caucus, and we will all, as a body, look at the opportunity to perhaps 
view this as a chance for a fresh start, a chance for a fair process, 
one that is more likely to produce an independent judiciary that is 
going to call balls and strikes regardless of who is at bat.
  Mr. President, I thank you for the opportunity. I yield the floor and 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The Journal clerk proceeded to call the roll.
  The PRESIDING OFFICER. In my capacity as a Senator from the State of 
South Dakota, I ask unanimous consent that the order for the quorum 
call be dispensed with.
  Without objection, it is so ordered.

                          ____________________