Wednesday, June 4, 2003

The current struggle to establish democracy in Iraq reminds us that no society can be either just or prosperous without the rule of law. New and old nations alike need independent and impartial courts as the foundation of government, and civilized nations must vigilantly maintain, not undermine, these institutions.

Today, the Senate Rules Committee will discuss whether the current filibusters of judicial nominations pose a threat to our own independent judiciary.I welcome today’s discussion because I believe we need reform: Indeed, senators from both sides of the aisle agree that our process for confirming judges is broken and needs to be fixed.

The American people need the courts to be fully staffed.Our judicial selection process should focus simply on identifying and confirming well-qualified jurists committed to enforcing the law, not their will or agenda.

For too long, this process has been caught in a downward spiral of politics and delay.During the administrations of former Presidents Bush and Clinton, for example, too many appeals court nominees were never voted on at all.

The problem is even worse today.

For months, a bipartisan Senate majority has tried to hold up-or-down votes on a number of judicial nominees.A partisan minority of senators, however, is blocking the Senate from holding those votes. As one leader of the current filibusters has said, “there is not a number [of hours] in the universe that would be sufficient” for debate on certain nominees.

The result: vacant judgeships and empty courtrooms, compelling the U.S. Judicial Conference to declare “judicial emergencies” across the country.People seeking redress for their injuries wait years for their cases to be tried and appealed, while judicial nominees languish in the Senate waiting for an up-or-down vote.The broken confirmation process translates into denial of access to justice in our nation’s most important courts.

The use of filibusters — not to ensure adequate debate, but to block a Senate majority from confirming judges — is unprecedented and wrong. This indefinite, needless and wasteful delay distracts the Senate from other important business.And it leaves would-be judges in limbo, along with thousands of litigants.President Bush has rightly called the situation “a disgrace.”

It doesn’t have to be this way. As all 10 freshman senators detailed in a bipartisan letter to Senate leadership on April 30, it is time for a fresh start.The ill will of the past should not dictate the terms and direction of the future. And 12 senators have proposed a bipartisan reform to guarantee full debate on nominees, while ensuring the ability of a Senate majority to hold up-or-down votes. This proposal deserves wide support.

More than 175 newspaper editorials representing the home states of 70 senators condemn the current filibusters of judicial nominees.Law professor and former Clinton adviser Michael Gerhardt has condemned supermajority requirements for confirming nominees, saying they “would be more likely to frustrate rather than facilitate the making of meritorious appointments.” And last month, legal scholars told the Senate Constitution Subcommittee that filibusters of judicial nominations are uniquely offensive to our nation’s constitutional design.

Proposals like the one being debated today in the Rules Committee have been endorsed by congressional experts from think tanks as diverse as the American Enterprise Institute, Brookings and Cato. An even more aggressive reform proposal in 1995 was endorsed by 19 Senate Democrats, as well as the New York Times, which editorialized that, “now is the perfect moment … to get rid of an archaic rule that frustrates democracy and serves no useful purpose.”

For nearly its first two decades, a Senate majority had the explicit power under the rules to call for votes.And since that time, senators have consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster.

As renowned former Senate parliamentarian Floyd Riddick once said, senators are expected to “restrain themselves” and “not abuse the privilege” of debate.Out of respect for an independent judiciary, senators have historically and consistently exercised such restraint.

But this Senate tradition has now been broken.The Rules Committee and the Senate must respond. Reforming filibusters in the judicial nominations context would restore both majority rule and Senate tradition.

There is precedent for such action: The Senate has previously considered at least 30 proposals to eliminate filibusters altogether.In fact, there are dozens of laws on the books that prevent a minority of senators from delaying action in certain areas — from the Budget Act of 1974 to the War Powers Resolution, and covering such diverse subjects as international trade, arms control, environmental law, employee retirement protection and nuclear waste. Judicial confirmations should likewise be immunized from filibuster abuse.

For far too long, our judicial selection process has been tainted by coarse politics and hampered by wasteful delay.The Senate needs a fresh start.

Sen. John Cornyn is chairman of the Senate Subcommittee on the Constitution. He served previously on the Supreme Court of Texas and as the state’s attorney general.

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