Judicial Selection Process

JUDICIAL SELECTION PROCESS

Mr. CORNYN. Mr. President, recently there has been a lot of discussion about, not just the role of the judiciary in our democracy, but the process by which judges are selected. To me, this all boils down to something that Daniel Webster once said when he opined that "justice is the greatest desire of man on Earth." It is, in fact, the judges, the ones who wear the black robe, the men or women who serve on local or State or Federal benches who are the ones with whom we identify that common yearning for justice.

Unfortunately, here in the Senate over the last couple of years, we have gone through an experience that not only reeks of injustice but also of unfairness and, indeed, rises to the level of unconstitutionality when it comes to the filibuster used against President Bush's judicial nominees.

Never, before these last 2 years, has a nominee for a Federal court, whether it is the Federal district court or circuit court or the United States Supreme Court, been blocked by the use of a filibuster when there was a bipartisan majority of the Senate who stood ready to confirm that judge-never before the current Congress, dating back now 2 years.

We all know the judiciary plays a critical role in our form of government. As high school students, or perhaps even earlier, we learn that our three branches of government play important but distinct roles in our constitutional democracy. It is the judiciary, which at one time in our Nation's history has been called the least dangerous branch, that has produced some of the most dangerous decisions, at least so far as it concerns our right to self-government. What I mean by that is when we see courts strike down the Pledge of Allegiance because schoolchildren cannot say the words "under God" when they pledge allegiance to the flag; when we see county clerks, indeed, when we see judges themselves authorize the issuance of marriage licenses to same-sex couples on TV and across our country; and when we see courts, on the basis of lawsuits that have been filed, tell military bases that they cannot grant access to their facilities to the Boy Scouts of America, we know these are not a product of a vote of the people.

In each of those instances it is the act or the dictate of a judge, a judge that I submit has lost any tether, any sort of anchor with the fundamental premises upon which the power of a judge is granted.

We want to make sure in this country, I believe, whether we are Democrats, Republicans or independents, that our judges are not politicized. In other words, we want to make sure when we walk into a courtroom when our case is decided that the judges have not already made up their minds before hearing what the facts are. We want to make sure that that judge does not have some sort of political or personal agenda which makes it impossible for them to be fair.

But what we have seen over the last couple of years is a political situation of the judicial selection process where good men and women who are highly qualified to serve as Federal judges at the Federal district court level and at the circuit court level have been not only obstructed by this unconstitutional filibuster process, which has never before been used in America history-what we have seen is also character assassination. We have seen individuals who spent a lifetime creating a reputation and developing a career as a judge totally smeared by various interest groups whose desire it is to politicize not only the judicial selection process but the decisionmaking process by judges. And that is wrong.

We know, in addition to the other important judicial vacancies that exist around this country which we have been unable to fill because of the filibuster, that in all likelihood during President Bush's second term of office he will have the opportunity to nominate one or more nominees to the U.S. Supreme Court. I am sorry to say these nominees will undoubtedly be savaged by some of these same interest groups who are bound and determined to politicize not only the act of judging-that quest for justice-but in fact the selection process itself. Unfortunately, these kinds of venomous politics are something we have come too often to expect when it comes to selecting these important members of the judiciary.

I firmly believe we are a big and diverse country. We have people who come from different places across the planet, who pronounce their name in different ways, who have different traditions, creeds, beliefs. And the great thing about this country is we can all live here in this one place and we can argue for what we strongly believe in. We can defend those views when they are attacked. But in the end, we settle those disputes-maybe not change someone's mind but we settle the dispute at least for a while by having an election.

On November 2 of this year, 60 million people not only chose to reelect President George W. Bush, but I believe in part cast their votes for the kind of judicial nominees this President has nominated in the past and which he can be expected to nominate in the future.

Men and women are drawn to service in the judiciary because they believe in that quest for justice, and they want to play an important role in making sure that desire for justice, that quest for justice, is satisfied, at least as much as is humanly possible, in courtrooms all across this country.

But we know-at least in the past, based on sad experience-there are those who will not be satisfied with an election; that people will not put their grievances and their anger behind them but will continue to pursue these policies of destruction and character assassination when it comes to the President's judicial nominees. Unfortunately, these angry individuals have not come to accept what the vast majority of Americans have agreed is the way we should work; that is, we do our best, we fight our best fight, we get our voters out, and then we have an election and we resolve those differences at the election.

We have seen time and time again how these tactics have been used shamelessly to smear some of the President's judicial nominees. It is only logical to expect some of these same tactics, notwithstanding what I have said, will be used again.

What we have seen in this Senate-and I believe the American people cast a vote, at least in part, on November 2-is, as I have said, unconstitutional filibusters. And what I believe the American people cast a vote on on November 2, particularly when it came to the Senate minority leader race, the race in South Dakota, was a repudiation of obstructionism and the unconstitutional use of the filibuster to block the President's nominees who, if allowed the simple dignity of an up-or-down vote, would have been confirmed as I speak.

The Constitution makes clear what the role of the Senate is. That role is to provide advice and consent. Yes. The Judiciary Committee, on which I am honored to serve, has a responsibility to review the credentials and background and experience, the temperament of these nominees to make sure they understand they are not just another branch of the legislature which is at liberty to enact through judicial edict their personal or political or any other agenda. Our job is to make sure they respect the separation of powers which makes the judiciary a distinct and unique branch which is supposed to interpret the law, not make the law.

Unfortunately, we have seen an obstinate minority in this body that has denied this Congress the ability to provide that advice and consent; that is, trying to elevate the de facto requirement under the Constitution for confirmation to 60 votes by claiming that the Senate rule which requires 60 votes to cut off debate trumped the Constitution.

You might ask, How is that possible? The Constitution is the fundamental law of the United States of America, and all other laws passed, including those of Congress, are inferior to that law. If the act of Congress is inferior to that law and when it conflicts, it must fall, surely a Senate rule that purports to require a supermajority vote of the Senate to confirm judges must fall when there is conflict with the U.S. Constitution.

The Constitution provides that in specific but limited instances a supermajority vote is required for passage, notably the ratification of treaties and notably the amendment of the Constitution itself. But nowhere in the Constitution is it provided that to confirm a judge, more than a 51-vote majority is required.

That is why over these last 2 years we have heard Members on this side of the aisle time and time again come to the Senate and say not only is this filibuster unfair, but, indeed, blocking an up-or-down vote by a bipartisan majority of this body is, in fact, in violation of the fundamental law of our land.

In order to be suited by virtue of temperament to serve in elected office, you have to be an optimist by nature, and I am. It is my sincere hope, it is my sincere request and entreaty to our colleagues on the other side of the aisle, that these tactics stop. They must stop not only for the good of the Senate but out of respect to the President who received almost 60 million votes on November 2 and out of respect for the Constitution itself. What has happened these last 2 years is wrong, it is unfair, and, indeed, it is unconstitutional.

Should President Bush have the opportunity to nominate one or more judges to vacancies on the U.S. Supreme Court, it is my sincere hope we will have learned something from the mistakes of the past. We will have also learned there is a political penalty to be paid for obstructing judges, for treating them unfairly and in an unconstitutional fashion.

As an astute observer not only of the human condition but also of politics in general, I am confident that all of my colleagues in the Senate, all 100, paid close attention to the verdict of the American people on November 2 when it came to a referendum on whether these unconstitutional, unfair obstructionist tactics should continue or end. It is my hope we all got the same message and that, indeed, we will treat the President's nominees fairly, that we will do what the Constitution requires, that we ask the questions, make sure they are qualified by virtue of experience, education, and temperament, that they understand what the role of the judge is, and that they are not just a legislator wearing a black robe and with lifetime tenure.

I believe on November 2 the American people rejected the tactics of obstructionism and demonization of the President's nominees. Frankly, I worry that the good men and women who have been nominated by the President to serve in these important positions, after those behind them see how they have been treated, or I should say mistreated, how long can we expect other good men and women, when called by the President, will answer the call only to know they will be smeared, strung out before the world and, indeed, then, obstructed by an unconstitutional process?

It is my hope we will have learned something over these last 2 years and to repudiate these tactics.

I will say something to my constituents and the people who may be listening who have contacted my office in very sincere concern for what they have seen played out on the Senate floor and in the judicial confirmation process.

I say to all of them, I appreciate your passion. I appreciate your concern. I appreciate your interest in the instruments of the Government that ultimately the people of this country control. We are going to need the involvement, the attention, the passion of all of the people and, indeed, we are going to need to appeal to our better angels in the Senate and in the Senate Judiciary Committee when it comes to the next nominees for the U.S. Supreme Court.

We all remember, whether it is the confirmation process by which Judge Bork was blocked, by which Clarence Thomas was ultimately confirmed-after going through a process that no one should have to go through-my hope is we will have learned that is not the way the Senate should conduct itself and that we will resolve among ourselves and resolve among the American people and to the people we represent that we will treat the President's judicial nominees fairly, that we will treat them with dignity, and that we will provide the up-or-down vote the U.S. Constitution demands when it comes to the confirmation of the President's judicial nominees.

I am not suggesting for a minute that anyone violate their conscience. Indeed, any Senator with a sincere belief that an individual judge should not be confirmed should come to the Senate, as no doubt they will, and explain to their colleagues why they feel so strongly, why they conscientiously object to this nominee and invoke their conscience. Every Senator should do that, and I trust they will.

But no one, no Senator has the right, no group of Senators has the right, no minority has the right to tyrannize the majority of the Senate when we stand ready in a bipartisan fashion to cast a vote, up or down, for a judicial nominee.

I sincerely hope we will not have only learned from the mistakes of the past when it comes to obstruction of the President's judicial nominees, but we will conduct ourselves with the kind of dignity the American people have come to expect from Senators and that we will conduct ourselves uprightly, with fairness and dignity, and treat all we come in contact exactly the same way.

I yield the floor.