Nomination of J. Leon Holmes

NOMINATION OF J. LEON HOLMES

Mr. CORNYN. Mr. President, I express my gratitude to the Senator from Alabama for his leadership on these issues. He and I share an experience in common, having been attorneys general of our respective States, I in Texas and he in Alabama. I guess that experience, together with the fundamental values we have all come to believe in, ensconced in the Constitution, that elevate the rule of law over the political maneuverings of men and women, is something about which we feel very strongly. I know he does, and I appreciate his eloquence and his passion and his commitment to those values and that ideal.

I know after this lengthy debate there will be those who will want to make a judgment on who won and who lost. That is what I want to talk about for a few minutes because, frankly, I think the battle is not over. With the failure to achieve the necessary votes for cloture of these three nominees this morning, three highly qualified and distinguished individuals who, frankly, don't deserve the shabby treatment they have received during this confirmation process, there will be some who will say: Well, the majority was unable to get the minority to change their mind and so the majority must have lost. The stubborn, recalcitrant minority must have won.

I would say this is a case of perhaps having lost the battle but the war is still raging. The war is still going on. Frankly, it is a war, a battle, a metaphor for a war that has been going on since the inception of this country. It is a debate about what kind of country this is, what kind of country America is.

Indeed, it is also a question of what kind of country we will become. I believe that if our judicial confirmation process becomes so politicized, as it appears to have become, and the test for confirmation is political correctness and licking your finger and putting it in the wind to test which way public opinion is going, and to make sure that if you are a lawyer or a judge or an attorney general you have made decisions in a way that is consistent with public opinion polls rather than the law, I think we will risk losing that war because it is fundamentally a war of words, of ideas, about what kind of Nation we are and what kind of Nation we will become, whether we will become one ruled by politics and polls and special interest groups or whether we are a nation of laws and not men and women.

There is more to be said. There is more to be done in this ongoing war. Of course, we all know those who have followed this debate are aware that the majority leader and Senator ZELL MILLER from Georgia, a Democrat colleague of ours, have filed a rule change proposal which would allow for sufficient debate in the Chamber on nominees but ultimately allow what the Constitution itself commands, and that is that majorities ultimately rule. This is about a fundamental precept of our democratic form of government which says that after the debate, after everybody has had their say, after we have learned from each other in the give and take, ultimately there has to be a vote, and that when those votes are counted, majorities will rule and they will determine the outcome.

Of course, that is the rule everywhere where democracy is respected and practiced except, I am sad to say, in the Senate, when it comes to these judicial nominees, because what we have experienced here with this unprecedented obstruction is a tyranny of the minority. It is, frankly, a shame. I think we are poorer for it.

We could talk about this ongoing war of ideas and debate. We can talk about the battle we fought here this last day and a half and how it is just one battle in this ongoing conflict of ideas and really debate about the nature of our country that we have had since the beginning of this country. But there is a judgment day. There is a judgment day under our form of government, and that is when ordinary citizens exercise their right to go to the polls and to say whether they approve or disapprove of what we are doing here in this Chamber.

Whether you are a city councilman, county commissioner, Governor, Senator, Congressman, President of the United States, we are subject to the ultimate judgment of those voters, of those citizens, because we are a country that believes in the sovereignty of the people. And it is the people who will have the last word.

I believe our friends on the other side of the aisle who have exercised this tyranny of the minority have made a very dangerous gamble. Their gamble is, what they are betting is, that not enough people are really paying attention. Of course, that is part of what we have been trying to do, to make sure that people who are interested have an opportunity to understand what is going on here and what is at stake.

But ultimately, under our form of government, there can be no division in this body or anywhere else in this country about the fact that, ultimately, the American people will exercise the final judgment and determine who wins and who loses. That has not been decided today on this issue.

This is just one battle in that ongoing war leading up to that day of judgment. Ultimately, for those of us who run for public office, that is what determines whether we will continue to serve here in this body or in any other elected office in this Nation or not; whether we maintain the confidence of the people; whether the people believe that what we are doing here represents their interests as opposed to special interests. And if, in fact, they have confidence in our judgment, our honesty, integrity, and what it is we are trying to accomplish here, then they will say so by returning us to this place, or any other office of public service. So, ultimately, this battle has really been a skirmish in this ongoing conflict.

There is an important difference between those who would obstruct a bipartisan majority who want to confirm these fine nominees, and that is really the nature of the judicial branch of our Government.

I have had the honor for 13 years to serve my State in the judiciary before I was attorney general, and now in the Senate. I believe fervently that what the Framers intended by creating the judicial branch was not one where we had ideologues on the bench, or even politicians who were trying to advance a political or personal agenda. What they conceived and what has helped maintain the rule of law by determining the independence of the judiciary is that we will have rules that will govern all of us, and there will be disputes about those rules and the facts will be decided by independent judges, not ideologues, not those politicians on the bench, not somebody who has run for a particular platform to be nominated and confirmed to lifetime tenure.

The Framers' genius really was that that is a role they left to the representative branches of Government, the Congress and the executive branch, represented by the President. They conceived of a judiciary that would interpret the law and not make the law; that would interpret what the legislature's intent was, not promulgate public policy from the bench, or legislate from the bench. The legislation, they said, should come from the Congress. Once the Congress has determined the laws, then the President has a responsibility to execute the law.

It is a judiciary that serves as the impartial "umpire." We all know that, in any sporting activity, an umpire who takes sides before the contest is inconsistent with the whole idea of fair play. We are talking about more than fair play here. We are talking about what kind of nation America is and what kind of nation America will become, whether we preserve this concept of an independent judiciary, unaffected by politics, that determines the law, not makes the law.

I believe James Madison, Alexander Hamilton, and others of the Founding Fathers, who so wisely conceived of this form of government, would literally roll in their graves if they heard some of the suggestions we have heard during this debate and elsewhere-that judges can, and perhaps should, be ideologues; and really what we are trying to do is achieve some sort of mythical balance to make sure we have enough conservatives and liberals and moderates on a multijudge bench, and somehow in this "witch's brew" we are going to come out with justice, with fairness; that people will know what the rules are ahead of time and be able to conform our conduct to what the rules are, so they can go about their business unafraid of being interfered with, molested, or sued.

Indeed, that is what we depend on, the knowledge of what the rules are, and that they will be administered by those who do not have a stake in the outcome, or have an ax to grind, or have a political or personal agenda. That is what our judges are supposed to be, not those who participate in a game of political football.

We do not want, as this process has seemed to degenerate into, judges who will precommit to the outcome of cases that may come before them before they have even heard the facts. In the Judiciary Committee, on which I serve, I have heard judicial nominees questioned about: How would you rule if such and so happened? What is your view of the 14th amendment or the 5th amendment? Assuming this given set of facts, how would you rule in that case?

Those questions are entirely inappropriate. We don't want judges, and we should not confirm judges, who would prejudge a hypothetical set of facts. We want judges who have an open mind and a commitment to the rule of law, and who will enforce that law impartially, without regard to who wins or loses.

If what we are doing here jeopardizes the rule of law, we will have done great damage not only to this body but to our country.

Mr. President, I thank my colleagues for patiently listening after this long debate. But I believed it was important to make some of these points.

I yield the floor and suggest the absence of a quorum.