- The Washington Times - Sunday, May 18, 2003

It is fitting that former Texas attorney general and Supreme Court Justice John Cornyn sits on the Senate Judiciary Committee and is chairman of its subcommittee on the Constitution.

Last week, Mr. Cornyn, Texas Republican, presided over its first hearing, which he framed as: “Judicial Nominations, Filibusters and the Constitution: When a Majority Is Denied Its Right to Consent.”

When Mr. Cornyn was elected to the Senate last fall, he couldn’t have expected he would be holding such a hearing. In 2001 and 2002, President Bush and a Senate controlled (by one vote) by Democrats often fought over judicial nominations. With the Democrats losing the Senate in the midterm elections, Republicans assumed the confirmation process would become much less contentious.

That is, Republicans assumed the Judiciary Committee they now control would approve nominees and that floor votes then would be scheduled — and duly held. That last assumption has been proved wrong. Senate rules require not a bare majority but 60 votes to cut off debate and thus permit a vote. With a working minority of 49 senators, the Democrats have the power to vote against ending debate — to filibuster — and so they have.

They have blocked votes on the nominations of Miguel Estrada (to the appeals court in the District of Columbia) and Judge Priscilla Owen (to the appeals court for Texas, Mississippi and Louisiana). “We didn’t anticipate that the Democrats would do such an unprecedented thing,” Mr. Cornyn said in an interview.

Mr. Cornyn believes the filibuster is unconstitutional when used to deny a vote on a nomination that has the support of a Senate majority, as do both the Estrada and Owen nominations. Yet as one might imagine, the idea “a majority” has “a right to consent” is to some Democrats as the red cape is to a bull. At last week’s hearing, Sens. Russell Feingold of Wisconsin and Charles Schumer of New York were dumbfounded that anyone would assert such a right and contended the filibuster is the only means by which they can try to affect the choices Mr. Bush makes for the bench.

Mr. Cornyn is too good a lawyer to say that what (he thinks) is unconstitutional should be litigated or that the only place to vindicate a right must be in a court of law. He is unwilling to join those who suggest that the president, nominees Mr. Estrada or Judge Owen, or even some Republican senators file a lawsuit against filibustering Democrats. Such a lawsuit, he is right to say, would be thrown out and the issue left — as it should be — for the Senate to decide through changes in its rules.

Mr. Cornyn says he “leans” in favor of amending the 60-vote requirement for cutting off debate to make clear it doesn’t apply to nominations. Yet he is acutely aware no changes in Senate rules, including the amendment he has in mind, may be made except by a two-thirds vote.

That fact has led some Republicans to suggest parliamentary maneuvers by which a majority of the Senate would declare the two-thirds requirement unconstitutional. “That would be virgin territory for us to get into,” says Mr. Cornyn, who wisely doesn’t seem eager to enter it.

The odds would appear long that the Republicans actually will succeed in changing the rules. The likelihood is that the Democrats will retain their power to filibuster. In which case, the question they will face is how often they can exercise it without hurting their prospects for regaining the Senate in 2004.

Mr. Cornyn says “it may take an intervening election” that yields a larger Republican majority before “a majority” finally has the power to exercise “its right to consent.” He is right to think an election could resolve the issue. And, indeed, it is an election that should resolve the issue.

Terry Eastland is publisher of the Weekly Standard.

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