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Politics and Justice

May 8, 2003 at 12:00 AM EDT
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KWAME HOLMAN: Today, for the sixth time, Republicans fell short of the 60 votes needed to end a Democratic filibuster against Miguel Estrada, President Bush’s nominee to the U.S. Court of Appeals for the District of Columbia.

SEN. PATRICK LEAHY (D-Vt.): I’m not going to vote for somebody who seems to be dominated solely for the purpose of politicizing the federal bench.

KWAME HOLMAN: And for the second time, Democrats in the narrowly divided Senate also maintained their filibuster against Texas Supreme Court Judge Priscilla Owen — Mr. Bush’s nominee to the 5th Circuit Court of Appeals.

Earlier this week, majority leader Bill Frist said the ongoing Democratic action should not be tolerated.

SEN. BILL FRIST (R-Tenn.): It is simply unacceptable to have the Democrats try to establish a 60-vote threshold for the advice and consent clause of the Constitution of the United States Senate.

KWAME HOLMAN: Miguel Estrada is the first nominee to a federal appeals court ever to be held up by direct filibuster. Adding Judge Owen to that list has put more strain on the relationship between the two parties. Presidential spokesman Ari Fleischer:

ARI FLEISCHER: There are a bipartisan majority of votes for Priscilla Owen. There are a bipartisan majority of votes for Miguel Estrada. They are being blocked and obstructed by a liberal, partisan, obstructionist minority.

KWAME HOLMAN: Last week, Republican Judiciary Committee Chairman Orrin Hatch (R-Utah) said he believed the reason for the Democrats’ tactics goes beyond their opposition to the two nominees.

SEN. ORRIN HATCH: It seems as though our colleagues just seem to hate President Bush, and they’re not being fair to him. They’re not being fair to his nominees. And the partisanship has gotten out of control.

KWAME HOLMAN: This week, Democratic leader Tom Daschle responded.

SEN. TOM DASCHLE (D-S.D.): Well, first of all, I think we have to be concerned about the hyperbolic rhetoric that comes over and over from some of our friends on the other side.

Last night, we confirmed the 121st judge for this administration. I would defy anybody to find a time when in two years, a little over two years, any Congress has confirmed 121 judges, circuit and district judges. We have opposed two so far. I would hope that our colleagues would take that balance into account before they make the rash statements made by many.

KWAME HOLMAN: In an effort to resolve the problem of stalled nominations, some Republicans on the Judiciary Committee are urging drastic steps, including rewriting Senate rules to eliminate the filibustering of judicial nominees.

And some Democrats also are considering remedies, such as bipartisan screening panels for judicial candidates. And in a letter to Leaders Frist and Daschle, 10 freshman senators, led by Texas Republican John Cornyn, suggested that whatever is done, the process should be improved as soon as possible.

MARGARET WARNER: We take up the debate now with two key players on the Senate Judiciary Committee.

As we just heard, Republican John Cornyn of Texas is behind a push with nine fellow freshmen to change the process. He’s chairman of the Constitution subcommittee, which held a hearing on ways to do that earlier this week. Democrat Charles Schumer of New York is the ranking Democrat on the court subcommittee. He’s got a reform proposal too that would have bipartisan nominating commissions in each state involved in selecting judicial nominees.

Welcome, senators. You’ve both called for changes in this process. Senator Cornyn, what would you put in its place?

SEN. JOHN CORNYN: Well, as you pointed out in the lead-in, we had a hearing at which multiple proposals were put forward, one by my colleague Senator Schumer, and one by Senator Arlen Specter (R-Penn.), another by Senator Zell Miller (D-Ga.).

And I think… I congratulate, really, all three of these senators for putting forth a positive proposal for reform, I think which acknowledges the fact that the judicial confirmation process is in a downward spiral, and really is at a low point in recent Senate history.

MARGARET WARNER: But would you want to end the filibuster of judicial nominees?

SEN. JOHN CORNYN: Margaret, I’m not opposed to the filibuster, because I think the filibuster is designed to make sure that there is adequate debate.

But at some point — and now it’s been two years since some of president bush’s nominees were first proposed — the debate needs to end and there needs to be a vote. What I want — and I think what the American people want, and I think most of the Senate wants — is when a majority stands ready to confirm a judicial nominee, a bipartisan majority to allow a vote, and then to confirm that nominee. Each senator is obviously free to vote their own conscience.

MARGARET WARNER: Senator Schumer, talk about your proposal and whether you think you can find common ground here.

SEN. CHARLES SCHUMER: Well, we’re trying.

You have to start, Margaret, from the outset. This president has nominated more partisan, more out of the mainstream nominees than any president in history. Most presidents have had sort of a sprinkling. There is hardly… there is hardly not only a Democrat, but the number who are way over not just mainstream conservatives, but to the right side, are enormous.

And yet, we have approved now 123 of the 125, and get called — as you heard by Ari Fleischer — obstructionist when we won’t approve two. So the president’s view is unless he gets every single nominee that he wanted that we are being obstructionists.

Now, that’s not what the founding fathers intended. They intended there to be real debate between the House… between the Senate and the president, and that there be give and take with which this administration there’s been none.

And so to break that deadlock, what I propose is a true bipartisan measure: that in each state there be a commission to nominate the judges, blue ribbon panel, half Democrats, half Republicans. They’ll come up with a candidate. Obviously that candidate won’t be too far right, won’t be too far left. And the president goes along with that, as does the Senate.

This has worked in several states already, and it’s worked in many state governments, as well. And it’s the best way to end the dead lock. Most of the other proposals say, well, after six months you’ve got to vote up or down. That’s forcing us. Those aren’t down the middle proposals. That’s forcing us to wave the white flag, and instead of approving 123 of the 125, approve all 125, although two would have a six-month wait before they got on the bench. That’s not much when you consider that this is a lifetime appointment to one of the most powerful positions in the federal government.

MARGARET WARNER: Senator Cornyn, what do you think of Senator Schumer’s proposal?

SEN. JOHN CORNYN: Well, I hear Senator Schumer saying two things.

One, I hear him saying that the judicial nominees by President Bush are out of the mainstream. But yet, as he acknowledged, the vast majority of them have been confirmed, I think which establishes that these are mainstream nominees. These are highly qualified people who deserve to be confirmed.

And I also hear him saying that the two that are being filibustered in this unprecedented effort on behalf of the minority Democratic leadership, that that’s okay because the vast majority have been confirmed.

Now, as far as Senator Schumer’s proposal, as I’ve said, I congratulate him for making a proposal. To me, it’s an admission that he thinks that the system is not working as it should. I do have some problems with this proposal, because it’s sort of like binding arbitration. It’s delegating to others to do what we in the Senate ought to be grown up enough to do for ourselves.

SEN. CHARLES SCHUMER: Well, the bottom line is it is broken, but it wasn’t broken by the Senate. It was broken by the president who has… I mean, I have voted for a whole lot of nominees that I consider out of the mainstream. I voted against the worst ones because you realize you want to try to compromise. But every time we try to reach out to the president and compromise, he says “no, you have to do it all my way.” And in fact, a few Republican senators went quietly to the White House and said, let’s compromise; the Senate would probably do this on its own. And they were told no.

So either the white House thinks they’ve got a great political issue, or they are so adamant on changing, really, the face of America — remember, these judges control as important decisions as the Congress, as the president — they can’t change America maybe to the way they want through the Congress, because we have our procedures and, as you say, it’s very close, so they try to do it through the one unelected branch, the Judiciary. And I believe the founding fathers, if they’re looking down from heaven, would fully approve of what we were doing.

MARGARET WARNER: All right, let me see if I can try to narrow down, though, or highlight what is really the difference in how you would approach reform.

Senator Cornyn, is it fair to say, as Senator Schumer said earlier, that at some point all the Republican proposals would limit the right of filibuster, whether through time limits or other ways? Is that accurate? That you think they’re… Senator Frist called it unacceptable. Do you think there should be some limits on it?

SEN. JOHN CORNYN: Well, first, Margaret, the main proposals being made by Senator Zell Miller, a Democrat, reiterating proposals made back in 1995 by Tom Harkin and Joe Lieberman, also Democrats. So it’s really a bipartisan proposal, but, yes, ultimately there needs to be an end to the debate. I know senators love to debate. It’s important that we debate all these nominees and all the issues that come before the Senate, but ultimately we’ve got to vote.

And we have to acknowledge that under our system of government, it’s majorities that rule. And if there are 51 senators that stand ready to confirm a judicial nominee, they ought to be allowed to vote at some point, and two years is way too long.

MARGARET WARNER: All right, and Senator Cornyn, let me just ask you, then, the practicality. How are you going to bring about this change? What’s your route to do that?

SEN. JOHN CORNYN: Well, I think there’s a couple of ways that are being discussed. One is possibly a rule changed — Rule 22, which requires that in order for debate to be closed off, that at least 60 senators have to consent. That’s where Senator Miller’s proposal goes to a gradually declining … incremental decline in the number of votes that it takes to close off debate, ending at 51.

There’s also other options being discussed; one I don’t particularly like, and that is some senators are talking about filing a lawsuit. I think this is something we should do for ourselves here between ourselves. I think there’s also another issue with regard to a constitutional point of order that might be called.

In other words, the Constitution doesn’t require super majorities in order to confirm judicial nominees like it does to amend the Constitution or to affirm, confirm treaties, and so I think the rule can’t trump the Constitution, and I think there’s some procedure being contemplated now to bring that to a head.

MARGARET WARNER: And to amend the Senate rule, if you just did it in-house, that would require 67 votes, wouldn’t it?

SEN. JOHN CORNYN: Well, it would require 67 votes to close off debate of a quorum sitting. So theoretically, depending on how many senators are there when the quorum is established, it could. But ultimately, you cannot impose a rule that violates the Constitution. So to say, I think there’s severe constitutional problems is saying it takes 67 votes to change the rule to let majorities govern; to me that presents a tremendous constitutional conflict that we’re going to have to resolve.

MARGARET WARNER: All right, Senator Schumer, one, do you think there is a … well, just the constitutional issue first. Do you think that the filibustering of judicial nominees is in violation of the Constitution?

SEN. CHARLES SCHUMER: No, and no one has… the whole silliness of these arguments, everyone they come up with is results oriented. They don’t like what’s happening so they say change the rules — not change the rules because they don’t work for other things.

The bottom line is the word majority is not in the Constitution. It doesn’t say 51 votes. And the great irony is the conservative movement wants strict constructionists on the bench who won’t read things into the Constitution, and my good friend — and he’s a great lawyer and was a great judge — Senator Cornyn, says the Constitution says a majority; it doesn’t.

If it said a majority then we shouldn’t have committees, because if the committee votes down a bill 10 to nine, but 51 senators on the floor want it, that would be unconstitutional; it clearly isn’t. And most experts — Democrat, Republican, liberal, conservative — think going to court and saying it’s constitutional is a joke.

The second argument that I would make to you is this: The bottom line here is that the Senate makes its own rules. You don’t change those rules on one specific… they don’t want to change… they don’t want majority vote for everything, just for the selection of judges because they don’t like the outcome of two cases.

That is not the way a government should work. That’s not really a rule of law, and it just won’t stand.

MARGARET WARNER: All right, but Senator Schumer, there is talk and there have been articles written about a possible parliamentary maneuver which Senator Cornyn, I think, was referring to, in which the president of the Senate, perhaps the vice president, Cheney, could simply declare that this rule, that Rule 22, doesn’t apply to judicial nominees. Do you think that’s possible?

SEN. CHARLES SCHUMER: Well, that sounds… this doesn’t sound too democratic to me, that the vice president, who has no power to change the rules of the Senate — that’s the rules of 100 senators — does that, that doesn’t make sense.

And, you know, all this talk of majority rule, what happened to Bush V. Gore? We didn’t hear much about majority rule or the electoral college. As I say, it’s results oriented. They don’t like the result, they change the rule. That’s not the way a democracy should govern.

And I have to say this, and I’ve only been a senator for five years. There’s a proud tradition in this Senate, and that is that our rules make us what James Madison described as the ‘cooling saucer.’ Yes, it sometimes is slow. And sometimes people who have strong views are able to slow down the process, to call us obstructionists, well, let the American people judge — is 123 out of 125 obstructionist? But to change the rules, to get everything — the president to get his way 100 percent, that violates the spirit of this Constitution in a way that I have not heard in a very, very long time.

MARGARET WARNER: Okay. Senators, thank you both. We have to leave it there. Thanks.