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

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Congressional Hearings
May 6, 2003
Senate Judiciary Subcommittee on Constitution, Civil Rights and Property Rights Holds Hearing on Judicial Nominations and Filibusters

CORNYN:

This hearing of the Senate subcommittee on the Constitution civil rights and property rights shall come to order. Before I begin an opening statement and turn over the floor to Senator Feingold as ranking member of this subcommittee for his opening statement, I'd like to begin with a few brief introductory remarks as the newest member of a distinguished line of Senators who chaired this subcommittee, including most recently my distinguished colleague Senator Russell Feingold.

Senator Feingold is an honorable and public minded person and I'm glad we've already developed what I believe to be a good, cooperative bi partisan relationship. I think we agree and he can certainly speak for himself and no doubt will but we agree that the current judicial confirmation process is broken and something needs to be done, and the purpose of this hearing is to talk about ideas about what can be done and we have a distinguished panel of Senators to kick us off. But I look forward to working with Senator Feingold and Senator Kennedy and all the members of this subcommittee to try to fix the problem.

I believe we need a fresh start in the United States Senate and I hope that fresh start will begin today. Second I'd like to say that when I was informed that I would have the honor of chairing this subcommittee I was looking forward to directing the attention of this distinguished subcommittee to many important issues that face our country. For example the ongoing war against terror raises important issues to our legal and constitutional system of government.

In particular I'm concerned about the need to ensure continuity in government should a catastrophic event god forbid befall the Washington, D.C. community including the Congress, the Executive Branch or the Supreme Court. Issues that raise important constitutional questions that may even require a constitutional amendment to address. Or another example, Senator Kyl and Feinstein have worked long and cooperatively to introduce a constitutional amendment to protect the rights of crime victims in the country. I'm pleased to be a co-sponsor of that particular amendment and I look forward to chairing the subcommittee mark up on it.

So there are many other topics besides judicial confirmation that I'd like the subcommittee to focus on and I'm sure that Senator Feingold agrees with me that there are many that need to be addressed. But unfortunately the Senate now faces a problem of governance and I think a problem of constitutionality within the Senate itself. That problem demands our attention and demands the attention of this subcommittee.

Although there are many other important issues that I'd very much like for the subcommittee to focus on the current judicial confirmation crisis raises important issues impacting Senate governance and our constitutional democracy. The implications of this crisis for our fundamental democratic principle of majority rule are before us right here, right now, in this body and they demand this subcommittee's attention.

And so I open this hearing today to focus on "Judicial nominations, filibusters and the Constitution when a majority is denied its right to consent". This week the Senate will mark a rather dismal political anniversary. Two full years have passed since President Bush announced his first class of nominees to the federal court of appeals. In my opinion it's an exceptional group of legal minds, some of them however still await confirmation. What's more, two of them are currently facing unprecedented filibusters and more filibusters of other nominees may be threatened.

Never before has a judicial confirmation process been so broken and the constitutional principles of judicial independence and majority rules so undermined. I'd like to take just a few moments to discuss those principles here. I also discuss those in an op ed published just this morning on the Wall Street Journal's opinion journal dot com website and without objection I'd like that to be made part of the record.

The fundamental essence of our democratically based system of government is both majestic and simple. Majorities must be permitted to govern. As our nation's founding father's explained in Federalist number 22, "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail." Any exceptions to the doctrine of majority rule, such as any rule of supermajority vote being required on nominations must in my view be expressly stated in the Constitution. For example, the Constitution expressly provides for a supermajority, two-thirds voting rule for Senate approval of treaties and other matters. That's not the case, however, with regard to judicial nominees.

At the same time, we of course have an important tool, here in the United States Senate, called the filibuster. Let me be clear in stating that the filibuster, properly used, can be a valuable tool in ensuring that we have a full and adequate debate. Certainly, not all uses of the filibuster are abusive or unconstitutional. As we Senators are often fond of pointing out, particularly when we are in the mood to talk, the House of Representatives is designed to respond to the passions of the moment. The Senate, also a democratic institution, governed by majority rule, but it serves as the saucer, to cool those passions, and to bring deliberation and reason to the matter. The result is a delicate balance of democratically representative and accountable government, and yet also, deliberative and responsible government.

But the filibuster, like any tool, can be abused. And have concerns about its abuse here. Today, a minority of Senators appear to be using the filibuster not simply to ensure adequate debate, but to actually to block some of our nation's judicial nominees and to prevent those seats from being filled by the people of the President's choosing by forcing upon the confirmation process a supermajority requirement of 60 votes.

The public's historic aversion to such filibusters is well grounded. These tactics can not only violate democracy and majority rule, but arguably offend the Constitution as well. Indeed, prominent lawyers like Lloyd Cutler and Senators Tom Daschle, Joe Lieberman, and Tom Harkin have condemned filibuster misuse as unconstitutional. Time does not permit me to read the previous statements of these individuals condemning filibusters as unconstitutional, but without objection, I'd like to have them submitted and made part of the record.

Moreover, abusive filibusters against judicial nominations uniquely threaten both Presidential power and judicial independence - and are thus far more legally dubious than filibusters of legislation, an area of preeminent Congressional control.

To justify the current filibusters, some have pointed to Abe Fortas. President Lyndon Johnson nominated Fortas to be Chief Justice in 1968. But what is critical to understand about the Fortas episode is that majority rule was not under attack in that case. Dogged by allegations of ethical improprieties and bipartisan opposition, Fortas was unable to obtain the votes of at least 51 Senators to prematurely end debate. That was a serious problem for Fortas because, if there were not even 51 Senators that wanted to close the debate, it was far from clear whether a simple majority of Senators present and voting would vote to confirm. And of course history tell us that rather than allow further debate, President Johnson withdrew the nomination altogether just three days later.

Nor do the Sam Brown or Henry Foster episodes serve as precedent. There, debate had not even begun when their supporters sought to end the debate prematurely. So the filibuster there was simply an effort to ensure debate and not to alter the constitutional standard. It's also worth noting back in 1968, future Carter and Clinton White House Counsel Lloyd Cutler, along with numerous other leading members of the bar and the legal academy, signed a letter urging all Senators that "nothing would more poorly serve our constitutional system than for the nominations to have earned the approval of the Senate majority, but to be thwarted because the majority is denied a chance to vote." Without objection, that letter will be entered into the record.

But of course, as I mentioned, Fortas wasn't even able to command 51 votes to close debate, and President Johnson withdrew the nomination as a result, so that letter was moot point.

The Fortas episode though is a far cry from the present situation. And the Cutler letter, condemning filibusters of judicial nominations when used to deny the majority its right to consent, most certainly would apply today. After extensive debate, Miguel Estrada, Priscilla Owen, and other nominees can be said to enjoy bipartisan majority support, yet they face an uncertain future of indefinite debate.

By insisting that "there are not a number of hours in the universe that would be sufficient" for debate on certain nominees, some Senators concede that they are using the filibuster not to ensure adequate debate, but to change the constitutional requirement by imposing a supermajority requirement for judicial confirmations.

Whether unconstitutional or merely destructive of our political system, the current confirmation crisis cries out for reform. As all ten freshman Senators including myself stated last week in a letter to Senate leadership, "we are united in our concern that the judicial confirmation process is broken and needs to be fixed." Veteran Senators from both parties express similar sentiments and some of them are here in our first panel today.

Accordingly, today's hearing will explore various reform proposals. Our first panel is composed exclusively of Senators - actually, two Democrats and one Republican Senator. All of them, members of this body, have each experienced the current crisis first hand. All of them have offered proposals for reform.

These proposals will be debated and they should be. But what's important that these Senators acknowledge the current confirmation crisis and have urged reform, and I certainly want to congratulate them for doing so.

Our second panel is comprised of the nation's leading constitutional experts who have studied and written about the confirmation process. Many of them have been called upon to testify in the past by members of both political parties and I am pleased to have all six of them here today. They are a distinguished group, and I look forward to formally introducing them to the subcommittee in just a few minutes.

I want to close just by saying that the judicial confirmation process has reached the bottom of a decades-long downward spiral. Our current state of affairs is neither fair nor representative of the bipartisan majority of this body. For democracy to work, and for the constitutional principle of majority rule to prevail, obstructionism must end, and we must bring matters to a vote. As former Senator Henry Cabot Lodge famously said of filibusters: "To vote without debating is perilous, but to debate and never vote is imbecile." Two years is too long and I believe the Senate needs a fresh start.

And with that, I'll turn the floor over to the ranking minority member of the subcommittee, Senator Feingold. And I know Senator Kennedy has indicated that he has a pressing engagement and Senator Feingold and I are going to try to work to accommodate him. But at this point let me know recognize Senator Feingold.

BREAK IN TRANSCRIPT

CORNYN:

Thanks Senator Kennedy.

Senator Hatch, Chairman of the Judiciary Committee as a whole cannot be here today but he would like to have his statement entered into the record regarding the history of judicial nominees during the first Bush and Clinton Administration's from his perspective and without objection that will become part of the record.

I know Senator Specter had a pressing engagement as a senior Senator I was going to recognize him first, no disrespect to Mr., Senator Schumer. Well I see the Senator, Senator Hatch here if I may withhold a second....

(INAUDIBLE)

Senator Hatch has said he'd withhold any further statement and his written statement is part of the record.

But I'd now like to introduce our first panel and I know Senator Specter intends to return. But it's made up exclusively of Senators and as I said it's a bi partisan group as it turns out, two Democrats and one Republican. I was going to apologize to Senator Specter about that but in the interest of bi partisan approach to reform I think it's quite appropriate.

I'm pleased to have this distinguished group here today. They recognize and I think by virtue of their recommendations for reform that the current judicial confirmation process is broken and need of repair. Now they each have proposals and very provocative and very interesting proposals and of course that is exactly the point of what I hope we would get to today is different ideas about how we can find ourselves out of this wilderness and into the path of more productive and still as Senator Kennedy reminds us a constitutional process of advice and consent but one that does not result in obstruction but does allow full debate of all the President's nominees in an up or down vote and may the majority have its will.

At this point I'd like to ask Senator Schumer who I know has written to the President and made a specific proposal to make any opening statement he would like. Senator Schumer we're glad to have you here today.

BREAK IN TRANSCRIPT

CORNYN:

This is an important issue and an important debate and I don't want to exclude anyone from the opportunity to participate in these discussions.

We're pleased to have before the committee six distinguished panelists to speak on these issues.

First, Dr. John Eastman, Professor of Law at the Chapman University School Of Law, specializing in constitutional law and legal history. He's also the director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute for the Study of Statemanship and Political Philosophy. And I'm pleased to say he's been called to testify before Congress a number of times by members on both sides of the aisle.

Mr. Bruce Fein is the senior partner at Fein and Fein, a Washington, D.C. law firm specializing in appellate and constitutional law. He's a nationally acclaimed expert on constitutional law, who previously served as associate deputy attorney general and general counsel of the SEC. Like Professor Eastman, Mr. Fein's been called to testify before Congress on numerous occasions and by members on both sides of the aisle, including I believe the ranking minority member of this subcommittee.

Professor Michael Gerhardt is the Hanson Professor of Law at William & Mary Law of School in Williamsburg, Virginia. In 2000 he authored a book of direct relevance to today's hearing entitled "The Federal Appointments Process." He previously served as special consultant to the White House counsel's office for the confirmation of Justice Steve Bryor (ph). Professor Gerhardt has the distinction of being the only joint witness called to testify by members on both sides of the aisle before the House Judiciary Committee in its special hearing on the impeachment process in 1998.

Ms. Marcia Greenberger is founder and co-president of the National Women's Law Center here in Washington, D.C. She's a nationally recognized expert on sex discrimination law and is no stranger to the politics of the judicial confirmation process. A graduate of the University of Pennsylvania, Ms. Greenberger has been recognized by Washingtonian magazine as one of the most powerful women in Washington.

Ms. Greenberger, we're delighted to have you here as well.

Professor Steven Calabresi is professor of law at Northwestern University School of Law. He served as a Supreme Court law clerk and was an attorney and speech writer in the White House and Justice Department during the Reagan and Bush administrations. He's written extensively on the numerous constitutional legal subjects dealing with the presidency and with separation of powers and has been published in the Yale Law Journal, the Stanford Law Review and many other prestigious law journals.

Finally, Dean Doug Kmiec is dean of the Catholic University Law school. I first met Dean Kmiec when he was at Pepperdine School of Law. It's good to see you again. He's the co-author of one of the nation's leading constitutional law case books and numerous articles on constitutional issues and the federal courts. He's previously served as assistant attorney general for the Office of Legal Counsel at the Department of Justice, the office charged with providing constitutional legal advice to the president, the attorney general and the executive branch.

I want to welcome the entire panel here today. And I know it's almost criminally short a period of time but so we can cover each of your statements to start with and then provide an adequate opportunity for the subcommittee to ask questions, we'll begin with opening statements of a mere five minutes before moving on to question and answer rounds.

Professor Eastman, we can start with you, please.

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CORNYN:

Would you give them a veto? The senate—home-state senator a veto on the entire Senate on the presidential nominees?

GREENBERGER:

Well, then we're—then we're getting into the blue slip situation, of course, that's another process that hasn't been discussed very much in this context in this hearing.

But the Senate in many ways, which has been pointed out, operates in a deliberative fashion that gives much credence to particular senators objections with respect to holds, with respect to blue slips, with respect to objections they would have.

The best process is to try to see where that comedy can come. Also...

CORNYN:

And you think that's a—you think that's a good thing, that judicial nominees are killed in the confirmation process because a single senator or any small group of senators may object to the nominee?

GREENBERGER:

Well, that certainly was the history that I must say I was very concerned about during the Clinton administration...

CORNYN:

I'm just asking if you think it's good or bad.

GREENBERGER:

I think that what we saw during the Clinton administration was an abuse of that process. And we saw nominee after nominee never getting a hearing to begin with, and it was—why that nominee never even got a hearing after year after year after year is hard to say, whether it was one senator or what the problem was. That's often not open to the public scrutiny to know.

I don't think that kind of secrecy was a good thing, when it was abused as it was, with so many nominees in the Clinton years who couldn't get a hearing, or if they did get a hearing, they never were sent to the floor.

Senator Lott said he had many better things to do than confirm judges.

CORNYN:

What I'm trying to understand, though, is if you are saying that it is a good thing or a bad thing, regardless of who is in the White House, for a single senator or perhaps the Judiciary Committee as a whole, to be able to have the power to thwart perhaps a bipartisan majority who would otherwise confirm that senator. I'm asking without regard to partisanship...

GREENBERGER:

Right...

CORNYN:

Without regard to who is in the Washington. Do you think that's a good thing or a bad thing?

GREENBERGER:

Right. And that's the spirit that I'm trying to answer your question with. And I think because it's a facts and circumstances kind of answer.

And what we saw with respect to...

(UNKNOWN)

Sometimes it's good and sometimes it's bad.

GREENBERGER:

I think when it's abused, I think when it ends up putting in peril many nominations without articulated reasons, that is not a good thing. I think that is very different than the filibuster, which is the subject of this hearing and the focus of this hearing, which is out in the public, where we're talking about at least 41 senators who have to express their deep concerns, and that is very different than what we saw during the Clinton administration, where things were behind closed doors and not subject to public scrutiny and they really were abusive, there's no doubt about it.

And if you would...

CORNYN:

If I could get—and I haven't forgotten Professor Gerhardt. I apologize. I asked an initial question, and my time is running out for this initial round. But it looks like Senator Feingold and I are going to have a chance to do a number of rounds since we're the only two here now. Hopefully we'll be joined by other senators.

But I asked Professor Gerhardt if it was fair to characterize your testimony as if it ain't broke, don't fix it. And I wanted to certainly give you a chance to respond.

BREAK IN TRANSCRIPT

CORNYN:

Well, I'm—just one last question and then I'll turn it over to Senator Feingold. I'm glad you brought up the question of the book again, because—that you've written. And I guess that's either a blessing or a bane, when you write a book and have to then sort of live with what you've written. And I just want to hear whether you still agree with what you've written, or maybe you can just put it in context and explain your—the book you published in the year 2000, "The Federal Appointments Process: A Constitutional and Historical Analysis," criticizes the proposal that, I guess, it was by Mr. Ackerman (ph), for conforming judges.

And in that book, you stated, quote, "The final problem with the super majority requirement is that it's hard to reconcile with the Founder's reasons requiring such a vote for removals and treaty ratifications but not for conformations. The Framers required a simple majority for confirmations to balance the demands of relatively efficient staffing of the government."

I just want to be clear. Do you still adhere to that statement?

GERHARDT:

Oh, very much so, Senator, because again, what I'm doing there is responding to a proposed constitutional amendment, and I might point out that Professor Ackerman's (ph) constitutional amendment proposal was to amend the process for choosing Supreme Court justices, not just judges generally.

And so my discussion about supermajority voting was done in that context. I was basically saying I thought majority rule made more sense for Supreme Court confirmations than super majority vote, as the one he has been urging.

CORNYN:

You would agree, finally, that the Senate cannot adopt a rule that conflicts with the Constitution, correct?

GERHARDT:

That's correct.

CORNYN:

Thank you.

Senator Feingold, let me turn it over to you.

BREAK IN TRANSCRIPT

CORNYN:

Well, let me—Senator Feingold, as we started out by saying or as I started out by saying that I believe it wasn't particularly fruitful for us to go back and examine the abuses of the past, whether they be real or whether they be just perceived. And matter of fact, those of us—all three of us, Senator Schumer, you and I and the other members of the Judiciary Committee—we see that being played out every time the Judiciary Committee meets and talks about a judge that is subject to some division of opinion on. My hope was that we could somehow get a clean break with the past.

You know, I hear what you're saying. Some may feel like that in itself is not fair, but what is fair, I think, is to—we can't control the past, and the only thing we can do is try to have an impact on the future. If there are rule changes adopted here, certainly they would operate equally for the benefit of a Democrat who's president in the White House or a Republican. And to me, this is largely a test of our hopes and aspirations for what this process could be and not an approval of what it, perhaps, has been in the past.

FEINGOLD (?):

Mr. Chairman, if I could just briefly respond? I think it's rare that one could go forward into the future without redressing past wrongs. There are ways to redress past wrongs.

The administration does have within its power to recognize what was done and to negotiate with us about what happened. Those individuals, in many cases, are still available to be federal judges. We recognize that most of the judges or people appointed by President Bush should become judges. That in fact is the record.

You may not like it that we refer to the past, but the actual record is we approved 123 and only denied two.

So to not say that in the context—to say that in the context of this discussion, we shouldn't refer to what happened in the past, to me, is not a suggestion that will actually help us move forward. We have to refer to it because something has to explain why we would take such an extreme step, and we do admit it's an extreme step...

(CROSSTALK)

FEINGOLD (?):

... judges. To not have a public discussion and regularly discuss how we got to this point is going to make it almost impossible to move forward, Mr. Chairman.

CORNYN:

And just to clarify, I don't really think we disagree, even though it sounds like maybe we are right now. What concerns me so much is to hear comments on the floor of the Senate about what sauce for the goose is sauce for the gander, tit for tat. The kind of recriminations and just, frankly, just things that are benefit the dignity of this institution and the constitutional process in which we're engaged.

And you know, I would wish that we could look forward and not have to re-live the past; maybe that's not possible. The only problem is that, for every Democratic presidential nominee that wasn't confirmed, I'm sure there are folks on my side that would say, "When Democrats were in control, Republican nominees of a Republican president weren't treated fairly." And so, I don't know where that takes us except continuing the downward spiral.

And that's why I'm hopeful as a result of some of the proposals that have been made by Senator Schumer and others. I don't happen to particularly like his proposal, but I congratulate him and appreciate his willingness to make one.

Let me just say two other things and I'll recognize Senator Schumer for anything he has.

I think what distinguishes the two nominees who are currently subject to filibuster is that, unlike the past, we have a bipartisan majority of the Senate that stand ready to confirm them today. And that is not true of any previous judicial nominee to my knowledge.

The second thing is when I hear...

SCHUMER:

Will the Senator yield?

Piaz (ph) and Burson (ph) both went through with far more bipartisan majorities. I think 20 or 25 Republicans voted for Piaz (ph) and Burson (ph).

CORNYN:

But they were confirmed; were they not?

SCHUMER:

You said that's the difference. The difference is not a difference.

CORNYN:

Well, I'm saying that a bipartisan majority stands ready to confirm two nominees today that are currently not—where the Senate majority is not able to effectuate its will because of the filibuster.

(CROSSTALK)

FEINGOLD (?):

There was a bipartisan majority at all times prepared...

CORNYN:

But they were confirmed, right?

(CROSSTALK)

CORNYN:

The other thing is that, you know, Senator Durbin said 123 to two is not bad for President Bush. And the thing is, I find it very difficult to reconcile that sort of statistic if indeed we're supposed to pay attention to that kind of scorecard with some of the caricatures that I've heard of President Bush's nominees and as being out of the mainstream or a right wing ideologs or otherwise unsuitable for confirmation.

Now, as we all recognize, senators are completely within their rights to vote against a nominee, and I will forever fight to make sure that right is preserved. But I think 123 to two is hardly indicative, to my mind, of some sort of right wing or out of the mainstream ideology espoused by President Bush's nominees. And I understand we may differ; I know we differ.
Senator Schumer?

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CORNYN:

Very well. Well, that's—that was the last question and comment, and with that I'd like to thank all of the distinguished lawyers and scholars who comprised this panel as well as the preceding panel of my colleagues, our colleagues in the Senate.

I think we've all found this fruitful and certainly important. Constitutional questions and issues have been raised and debated and I wasn't laboring under the hope or actually the expectation—maybe the hope, but not the expectation we would finally settle that today.

Before—I want to make sure that I express my gratitude, first to Senator Hatch for his leadership on the Senate Judiciary Committee. I don't think, regardless of who leads as chairman of the Judiciary Committee it's ever an easy job. I think I remember Senator Biden saying he's sure glad he's no longer chairman of the Judiciary Committee. But I believe we owe Chairman Hatch a debt of gratitude for his leadership, for leading us through difficult times for the committee.

I'd like to express my gratitude to the staff who've helped us get ready for this hearing, including the staff of Senator Feingold and all of those who've worked so hard to try to allow us to tee-up the important questions that we've addressed here today.

I know we'll have more hearings and we'll continue to have debate about this and other important questions facing our nation, particularly as they regard the constitution, as Senator Feingold alluded to earlier, and as I alluded to earlier, and I look forward to future successful hearings and bipartisan cooperation. This is one of the few hearings that I think we've ended where everybody was sort of had a smile on their face.

SCHUMER:

Oh, yes. And I want to thank the witnesses. They've been here a long time, and I consider this fun. I hope you do.

CORNYN:

And with that, this hearing of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights is hereby adjourned.