At every new year, Americans traditionally reflect on the past, identify problems that need fixing, and adopt New Year’s resolutions. In that same spirit, the Senate needs a New Year’s resolution to fix its broken process for considering the president’s judicial nominees. To do so, however, we must first recognize that liberal interest groups in Washington have prevented the Senate from confirming several of this president’s judicial nominees for one simple reason: They just don’t want judges who will just apply the law as written.
These liberal interest groups want judges who will redefine marriage and condemn the Boy Scouts, expel the military from college campuses, and purge the public square of expressions of faith. They want courts to ignore the three-strikes-and-you’re-out law and give lenient sentences to convicted criminals, block school-choice programs designed to expand educational opportunities to minority communities, and require better treatment for terrorists than for ordinary Americans accused of a crime. They want judicial activists who believe that our civil rights are violated anytime a public-school teacher recites the Pledge of Allegiance, a county clerk issues a wedding license only to the union of one man and one woman, a terrorist is denied access to cookware or athletic equipment, or a Boy Scout troop is allowed onto a military base.
These groups want judges who will impose their agenda on the nation by judicial fiat–regardless of what the American people have said at the ballot box. And they will do anything to oppose judges who will not blindly rule in their favor.
The commencement of a new Congress this week provides the perfect opportunity for senators to resolve to reform the judicial-confirmation process. An important first step in reform, however, is recognizing that these liberal interest groups have invented a series of double standards to defeat this president’s judicial nominees. The Senate must resolve to reject these absurd double standards and restore fair and traditional standards in the coming year.
First, liberal interest groups claim that judicial nominees must hold “mainstream,” and not extreme, views. Yet they applied a very different standard to Democrat nominees.
For example, prior to her service on the federal bench, Justice Ruth Bader Ginsburg–a distinguished jurist and liberal favorite–served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional, but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, that courts must require the use of taxpayer funds to pay for abortions, and that the age of consent for sexual activity should be lowered to age 12.
Needless to say, many Americans do not consider these views to be mainstream–yet Senate Republicans and Democrats alike set aside such concerns and approved her nomination to the Supreme Court by a 96-3 vote. By contrast, this president’s judicial nominees–who hold views shared by millions of Americans and enjoy the support of a bipartisan majority of senators–suffer vicious attacks and unprecedented obstruction at the behest of liberal interest groups.
All senators should reject this double standard. We should consider nominees on the basis of their qualifications and judicial temperament–and not on the basis of some distorted conception of the political mainstream. We should examine their commitment to applying the law regardless of their personal beliefs–and not the actual content of those beliefs. And we should consider nominees based on the mainstream support of a bipartisan majority of the Senate–rather than the virulent opposition of a partisan minority of senators.
Second, liberal interest groups claim that this president’s judicial nominees must swear allegiance to certain views with regard to abortion. Yet once again, they apply a very different standard to Democrat officeholders.
With the blessing of these groups, Senate Democrats have unanimously elected Sen. Harry Reid as their new leader–even though he says he personally opposes abortion and has repeatedly refused to support Roe v. Wade. Such personal views are shared by millions of Americans and certainly should not be a basis for denying high public office to otherwise qualified individuals. Yet these groups have done precisely that to several of this president’s judicial nominees.
These groups have it exactly backwards. If anything, one’s personal opinion on abortion (or any other issue) is even less relevant for judicial nominees than for U.S. senators. Judges are duty-bound to follow the law regardless of their personal views. By contrast, legislators are elected precisely because of their personal political views.
It’s also worth noting that, while Roe has been on the books for over 30 years, the American people continue to support parental notification and consent laws and other consensus laws like the partial-birth-abortion law, and oppose mandatory public funding of abortion. Yet liberal interest groups file lawsuit after lawsuit demanding that judges reverse these popular and democratically enacted policies by judicial fiat, and they oppose the appointment of judges who will not blindly rule in their favor.
Senators should consider judicial nominees on the basis of their qualifications and commitment to applying the law as it is written–regardless of their personal views on abortion or Roe–just as Senate Democrats recently set aside such views in electing their leader.
By the Book
Third, liberal interest groups insist that it should take a supermajority of 60 senators to confirm a judicial nominee, and they viciously attack any effort to restore the traditional rules for confirming judges as a “nuclear” tactic. Yet it is their radical rewriting of Senate rules–rather than the attempt to restore constitutional traditions–that is so destructive.
The rules governing the judicial-confirmation process should be the same regardless of which party controls the White House or the Senate. They should not be subject to the whims of liberal interest groups. Yet every judicial nominee who has enjoyed the support of a majority of senators has been confirmed–until now.
The Senate should reject this double standard and restore our constitutional and traditional standards for confirming judges. No one would say that, although 51 percent of voters can elect a Democrat to office, a 60-percent vote is required to elect a Republican to office. Likewise, our Constitution and Senate tradition provide that a majority of senators may confirm a judicial nominee, whether the president is a Democrat or Republican. Indeed, throughout history the Senate has consistently confirmed judges who enjoyed majority but not 60-vote support–including Clinton appointees Richard Paez, William Fletcher, and Susan Oki Mollway, and Carter appointees Abner Mikva and L. T. Senter.
Yet liberal interest groups now demand that this president’s judicial nominees must be supported by a supermajority of senators, or else be denied even the courtesy of an up-or-down vote, through the unprecedented use of an obstructionist tactic known as the filibuster. Such tactics are dangerous to the rule of law because they politicize our judiciary and give too much power to special interest groups. As law professor Michael Gerhardt, a top Democrat adviser on the confirmation process, once wrote, a supermajority rule for confirming judges “is problematic because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of the special interests.”
There is nothing sacrosanct about the obstructionist tactic known as the filibuster. In fact, there are at least 26 laws on the books today which abolish the filibuster in a number of policy areas and thereby ensure that a majority of senators is sufficient to take action.
Nor is there anything extraordinary about a majority of senators acting to craft Senate rules and procedures. The constitutional authority of a majority of senators to strengthen, improve, and reform Senate rules and procedures was expressly stated in the Constitution, unanimously endorsed by the U.S. Supreme Court over a century ago, and dutifully supported and exercised by the Senate on countless occasions ever since, as carefully documented in the next issue of The Harvard Journal of Law & Public Policy. Such authority has also been recognized–indeed, praised–by leading Senate Democrats, including Robert Byrd and Ted Kennedy. And Senator Charles Schumer acknowledged the legitimacy of such authority at a Judiciary subcommittee hearing I chaired just two years ago.
Liberal interest groups have disparaged the authority to restore Senate traditions by majority vote as a “nuclear” tactic. But what is truly nuclear is the radical alteration of the Senate confirmation process–not the attempt to restore Senate tradition by traditional means.
Two years ago, all ten Senate freshmen, Republican and Democrat alike, joined to declare that the Senate’s confirmation process is badly broken and that we need a fresh start. Restoring the Senate’s judicial-confirmation process by using honest and fair standards and procedures for judging nominees, and repudiating the extreme double standards perpetrated by liberal interest groups in Washington, would be an excellent start.
–U.S. Sen. John Cornyn (R., Texas) chairs the Judiciary Committee’s subcommittee on the Constitution, Civil Rights and Property Rights, and is the only former judge on the committee. He served previously as Texas attorney general, Texas supreme-court Justice, and Bexar County district judge.