Senate Judiciary Subcommittee on Constitution, Civil Rights and Property Rights Holds Hearing on Judicial Nominations and Filibusters

DURBIN:

Thank you very much, Senator Cornyn. And thanks to the panel.

I'd just like to make a couple of observations. Before I came to congress, 28 years ago, I was a Parliamentarian of the Illinois State Senate, so I sat there with those rules and worked with them everyday. That was part of my life. And so, I understood them. That was what I was paid to do and I understood those rules. Then, I came to the U.S. House of Representatives and it was a struggle, with Jefferson's manuals, the new House of Representative rule. And then I came to the senate and faced a new set of rules. And again, I'm a student. I don't profess to be an expert. But, I did notice one essential difference as I moved from a state's senate to the U.S. House of Representatives to the United States Senate.

Without fail, after every election, in the Illinois State Senate, we adopted our rules. Without fail, after every election the U.S. House of Representative, adopts its rules. Without fail, after every election, the Senate doesn't adopt its rules. Now why is that? Because they're continuous. Those rules continue, even though we are a subsequent Congress, we are a new group of senators for our own purposes, from the viewpoint of the senate and its tradition, we are a continuing body.

Robert Carroll (ph) makes that point—I think very graphically—in his book about LBJ, which I think most of us have read. And I think that's being overlooked, today, by so many people who say well this is a new congress. You ought to be able to start out anew. We never do. We start off with the old rules, and we don't even adopt them because no one has wiped them away. They're still there today, is they were before the election. And that creates a different premise for this debate, as far as I am concerned.

The second thing I'd like to say is that early in the third quarter, for those who are keeping score, the score is 123 to 2. President Bush, as of this afternoon, has received 123 judges that he's asked for, and exactly two have been held up. You would assume from this hearing that the number were exactly the opposite. That we only approved two. We're filibustering 123 judges and it's just an outrage. Well, I'd like to put it in perspective. I understand why Senator Cornyn called this hearing. It must be curious to you, as a new senator, to come in at this point and wonder why has the senate tied itself in knots over judicial nomination to the point where there is a real difference and the filibuster is being used on two of the nominees. And I would simply say to you that there were several games played before you arrived. In fact, at least 59 games played on Clinton nominees, who were never given a hearing, never given a day in court, never given a chance to sit at that table, 59 different individuals. Now, there are those of you who are arguing that, in and of itself, there's nothing wrong with that, but it's clearly wrong to use the filibuster of two nominees sent by the Bush White House. I don't think that follows, and I think that's the point made by Senator Feingold. If the rules of the senate could countenance (ph) the abusive treatment of 59 Clinton nominees, and say, it's the rules of the senate, you've got to live with it Democrats, sorry. To stand back now and say, the rules of the senate can't be used to stop a Bush nominee, there's a constitutional principle at stake here. It doesn't work. It was either unconstitutional then, and is unconstitutional, now, or vice versa. Take your pick.

But having said that, what i think is at stake is, that we understand the agenda during the Clinton years. The agenda was to leave as many vacancies as possible. Particularly, at the Circuit Court level. Use the Senate rules, use whatever you can, in the hope that a Republican would be elected president who would fill those vacancies. That's what this is all about. We're playing ping-pong above the table and rolling bowling balls at one another below the table. That's what this debate is all about. I think the only way it's resolved is if something happens which will be truly miraculous and that is the surrender of power by a president, and I don't think he's going to do it. One or two other suggestions have been made to try to find some bipartisan way out of this. it's not likely going to be embraced by this White House.

Maybe it would never have been embraced by a Democratic president. But until then, we're going to find ourselves in this tangle. And I might also add paranthentically (ph) that when you're dealing with judges of the kind that are being held up and the kind that maybe challenged in the future, this is going to happen again. We live in a closely divided nation politically, in a closely divided Senate, and with closely divided courts. And it's no wonder that one or two nominees become determinative.

And I'd just like to ask—maybe Professor Calabresi, since you're from my home state, let me just add that I am not part of your quote, "angry minority." I got a smile on my face. And I'm doing my best. I'm not angry over this, but I am anxious to find some justice in this situation. And could you tell me how you could rationalize the treatment of Clinton nominees under Senate rules being denied even an opportunity for hearing as being constitutional and the use of the filibuster rule is unconstitutional.

CALABRESI:

Sure. Actually, let me comment on several other things that you said. I mean, first with respect to your comments about the Senate being a continuing body, the Senate of course is a continuing body, but then each new Senate organizes itself differently, perhaps with a different majority and minority leader...

(UNKNOWN)

Under the same rules...

CALABRESI:

With different members (ph) on committees. If the Senate were completely a continuing body then presumably the previous allocation of committee slots might maintain itself, and...

(CROSSTALK)

CALABRESI:

Secondly with respect to numbers of nominees, you mentioned—you know, there are two individuals up to now who have been filibustered who've been held up for a period of two years or so. Those two individuals are being nominated to be one of 175 federal court of appeal judges in the country where an individual with a caliber of Miguel Estrada or Priscilla Owen.
With respect to the Clinton period, I think a Senate majority does have the right to figure out what hearings to schedule and what hearings to hold...

(UNKNOWN)
Under the Senate rules.

CALABRESI:
Yes, under the Senate rules which can be changed by a majority vote by each succeeding new Senate. And it seems to me the majority of senators has a right basically to alter the Senate rules if it wants to do so. I do think some individuals who were talented should have gotten action during the Clinton years. I specifically mentioned Diana Kagen (ph) who was nominated for the D.C. circuit who's now becoming the dean of the Harvard Law School. As it happens, she and I clerked together in the Supreme Court with Miguel Estrada (ph). And I had a very high opinion during those years of both Miguel Estrada (ph) and Diana Kagen (ph) and I'm sorry that there wasn't action taken on her nomination. I don't think that not acting on Miguel Estrada's (ph) nomination is going to make the situation any better.

(UNKNOWN)

(inaudible)

(UNKNOWN)

Yes sir. With all due respect, sir, I now want to go back to the questions Senator Mccorine (ph) asked me, initially.

(UNKNOWN)

On his time. No—go ahead.

(UNKNOWN)

The (inaudible) article. On that I would—Senator, I would just say that I'm quite good friends with both the authors, and we agree on some things and disagree on a lot. I would say I agree with some of the articles, I disagree with some constitutional analysis in it as well. I certainly disagree with their conclusions regarding requisite vote for a change in Senate Rules. I might add that in fact I disagreed to some extent even with their methodology. And you'll note that I reached a constitutionally of filibuster by a different route than they do. So I rely on them for factual matters, but not otherwise.

And I just want to echo Senator (inaudible) eloquent remarks, because I do think the continuity of the Senate is a critical thing here, and that explains, I think, the unique circumstances of the Senate. And while we can quote (inaudible) that might have been in truth with the British Parliament and the British system, it has nothing to do with the American system and the unique constitutional structure that includes Article I, Section 5 that empowers each chamber to adopt rules for its respective proceedings.

HATCH:

Mr. Fein, did you want to comment?

FEIN:

Yes, one, I think that your comment really exposed the kernel of the problem here, and it's a sense, I think, on both sides of the aisle that there has been partisanship played whenever it suited their purpose and exploit the rules to their advantage and then change the rules of the game when they are in the minority. And there is no way to write a constitution with sufficient clarity in order to avoid the kind of log jam we're in now if a majority wants to take their power to an extreme or a minority exploiting the rules.

They are what I call a series of unwritten elements to our constitution. They are rules of self-restraint that if not complied with are going to have the whole system shipwrecked. A president could destroy a department he didn't want simply by refusing to nominate anybody. He doesn't like the Department of Education, he won't nominate a secretary of education or any assistant secretaries.

Unless there is self-restraint and an agreement (inaudible) that there will not be an exploitation in order to destroy what is commonly accepted in the public as popular will or the results of an election, I don't think that there's any rule that you could adopt that's going to overcome the problem.

Well, let me make one observation, however, with regard to the idea of a continuing Senate. I think your observation is quite accurate and forceful, but I don't think a continuing Senate can override Article II of the Constitution, which says in the appointance clause (inaudible) if you get a majority and the majority forces a vote, then you've got to confirm judge. And in my judgment, even though the continuing Senate doesn't mean that each Senate's rule is not as—it doesn't enjoy the same dignity as the prior Senate's rule because it was a carryover, still if majority, in my judgment, under Article II wants to exercise its muscle, so to speak, and force a vote on the floor, I think it overrides the Senate rules.

(UNKNOWN)

I think I'm out of time, unfortunately. I wanted to let Ms. Greenberger make a comment. But...

HATCH:

Certainly we have time to do that, Senator.

(CROSSTALK)

GREENBERGER:

Thank you, thank you, both senators. I just wanted to make a couple of quick points. First of all, what we are talking about here, I think, as Mr. Fein said, at the end is changing what the rule says with respect to needing a super majority in order to change the rules. So that would be—that is the crocks of whether or not the Senate can ignore these continuing rules and make up a new rule under these circumstances.

There was no such changing of rules in the past, and while there may have been abuses of the rules—and that, Senator Cornyn, was what I was referring to as being unhappy about. I do take issue with Mr. Fein saying that there were—both sides were changing the rules. I don't think that there was a changing of the rules in the past in contrast to what is being articulated now under the theory that the current rules are unconstitutional.

Secondly, I wanted to make a point with respect to fresh start. Everybody once can have a fresh start on the one hand, but a fresh start that ignores where we are today as a result of problems in the past is not a realistic way of having a fresh start that accommodates what I think people are looking for. Senator Feingold pointed out that there is a current distortion in the system as a result of what happened in the past. It is insufficient to say, oh, I wish things had been done differently, there were problems in the past, I'm sorry about them, I pointed them out in the past and now I'm pointing them out in the current. That takes us only so far.

We have consequences today because of those problems in the past. And so, any fresh start has to take into account the fact not that there is one or two judges out of 175. And so, what problems could they cause with respect to Judge Owen or Mr. Estrada? But because of those problems in the past, today in 2003 we have a distorted judiciary. We don't have the kind of balance of views. We don't have the enrichment of the different perspectives of judges that we would have had and therefore inadvise and consent responsibilities of this Senate and all of these senators in coming to grips with each of the nominees.

It is my view that the Senate and each senator have a constitutional responsibility to take into account whether each of these nominees in the circumstances of today belong on a court of appeals or a district court or ultimately the Supreme Court, but especially with respect to these lower courts because of distortions with the past and because we don't have the kind of balanced judiciary right now we would have had absent those distortions.

(UNKNOWN)

Thank you.