November 13, 2003,
Throughout last night's historic round-the-clock session of the U.S. Senate, a partisan minority of senators defended their filibusters against the president's judicial nominees by making two basic arguments. Both were false.
First, they claim that the Senate's record of "168-4" 168 judges confirmed, 4 filibustered (so far) somehow proves that the current filibuster crisis is mere politics as usual.
But, as I explained in an op-ed yesterday, this is not politics as usual; it is politics at its worst.
After all, it is wrong for a partisan minority of senators to treat good people like statistics; wrong to mistreat distinguished jurists with unprecedented filibusters and unconscionable character attacks; wrong to hijack the Constitution and seize control of the judicial-confirmation process from the president and a bipartisan majority of the Senate; wrong to deny up-or-down votes to judicial nominees simply because a partisan minority of senators cannot persuade the bipartisan majority to vote against a nominee; and wrong not to play fair, follow tradition, and allow a vote. Once is bad enough, and four unconstitutional filibusters is four too many.
Second, they argue that the current filibusters are justified on the basis of precedent. But, in fact, the current filibusters are both unconstitutional and unprecedented. Senate Democrats themselves have admitted as much.
The Constitution expressly establishes supermajority voting requirements for authorizing treaties, proposing constitutional amendments, and other specific actions. To confirm judicial nominees, by contrast, the Constitution requires only a majority vote as the U.S. Supreme Court unanimously held in United States v. Ballin (1892).
No wonder, then, that filibusters have been roundly condemned as unconstitutional by Democratic senators and leaders as well as by prominent Democrats on the bench and in the legal academy.
The current filibusters of judicial nominations are also unprecedented. 168-4? Try 0-4. Until now, every judicial nominee throughout the history of the Senate and of the United States of America, who has received the support of a majority of senators, has been confirmed. Until now, no judicial nominee who has enjoyed the support of a majority of senators has ever been denied an up-or-down vote. Indeed, until now, Democrat and Republican senators alike have long condemned even the idea of defeating judicial nominees by filibuster.
During Wednesday night's historic session, however, a partisan minority of senators claimed precedent for their filibusters. Embarrassed by public exposure of their destructive acts, this partisan minority would very much like to find support for their actions, no matter how implausible.
But Senate Democrats have already admitted at least amongst themselves that their current obstruction is unprecedented. In a November 3 fundraising e-mail to potential donors, my colleague, Jon Corzine, the chairman of the Democratic Senatorial Campaign Committee, acknowledged actually, he boasted that the current blockade of judicial nominees is "unprecedented."
It is dishonest for Senate Democrats to tell their donors one thing, and the American people another thing. My colleague from New Jersey is right that the current filibusters are unprecedented. And the alleged precedents now cited by Senate Democrats for the current filibusters are all false.
For example, some say that the current filibusters are justified because of the previous treatment of Stephen Breyer, Rosemary Barkett, H. Lee Sarokin, Richard Paez, and Marsha Berzon.
That is a rather bizarre argument to make. Breyer, Barkett, Sarokin, Paez, and Berzon were all confirmed by the U.S. Senate: Breyer became a judge on the First Circuit until he was elevated to the Supreme Court; Barkett now sits on the Eleventh Circuit; Paez and Berzon are now judges on the Ninth Circuit; Sarokin served as a judge on the Third Circuit until he retired.
Indeed, Paez was confirmed only because Republican senators refused to filibuster his nomination. Fewer than 60 senators ultimately voted to confirm Paez. But although his opponents could have filibustered him, Paez got a vote and his judgeship because Republican senators understood it is wrong to filibuster judicial nominees.
I would love to see Pryor, Owen, Pickering, and Estrada "mistreated" the same way Breyer, Barkett, Sarokin, Paez, and Berzon were treated. If you take the Democrats' argument seriously, then Pryor, Owen, Pickering, and Estrada must be confirmed.
Some argued overnight that the current filibusters are justified because of the failed 1968 nomination of then-Justice Abe Fortas to be chief justice.
This claim is also unfounded. The Congressional Record makes clear that a confirmation vote would have likely failed by a vote of 46-49. Moreover, Fortas's opponents explained repeatedly that they were not filibustering they just wanted adequate time to debate and expose serious problems with his nomination. So Fortas wasn't denied confirmation due to a filibuster; he was denied confirmation due to the opposition of a bipartisan majority of senators. (Indeed, shortly thereafter, Fortas resigned from the Court altogether, under threat of impeachment.)
Finally, some say that the current filibusters are justified because some of President Clinton's nominees were held in committee.
But there is nothing new or relevant about a judicial nominee who is not confirmed due to lack of support from a Senate majority. At the end of the first Bush Administration, there were 54 judicial nominees who had not mustered majority support and thus were not confirmed. At the end of the Clinton administration, there were 41 such nominees. If a majority of senators chooses to defer to a committee's decision not to bring someone to a vote, that is the majority's right under our constitutional system for confirming judges.
The current situation is precisely the opposite. Today, an enthusiastic bipartisan majority wants to confirm judicial nominees, yet for the first time in our nation's history, a minority is stopping them.
That's why Georgetown Law Professor Mark Tushnet no shill for President Bush's judicial nominees has written that filibusters are clearly different from the holds and committee delays used against nominees from the earlier Bush and Clinton administrations. He has written that "[t]here's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules on scheduling, on not having a floor vote without prior committee action, etc. to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster rule can't be overridden that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so with respect to a filibuster." He has also written that "[t]he Democrats' filibuster is . . . a repudiation of a settled pre-constitutional understanding."
John Cornyn is a Republican senator from Texas and chairman of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights.