WASHINGTON – The longstanding unwritten rule not to filibuster judicial nominees has been broken and the Senate must find a way to break the impasse over President Bush’s nominees, U.S. Senator John Cornyn told a hearing of the Committee on Rules and Administration Thursday.
“The current filibusters of judicial nominees, done not to ensure adequate debate, but to block a Senate majority from confirming judges, are unprecedented and wrong,” Sen. Cornyn, Chairman of the Judiciary Committee’s Subcommittee on the Constitution, said at the hearing. “Until now, members of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future. ”
Currently, in an unprecedented move, a minority of senators is blocking an up-or-down vote for Justice Priscilla Owen of Texas, nominated to the U.S. Court of Appeals for the Fifth Circuit, and Miguel Estrada, nominated to the U.S. Court of Appeals for the D.C. Circuit. “There has never been a filibuster of a judicial nominee, now there are two,” Sen. Cornyn said. “Further nominees are threatened to be filibustered and we must do something soon.”
Senate Resolution 138, the bipartisan proposal discussed at the hearing, would still guarantee full debate on nominees, while enabling a Senate majority to eventually hold up-or-down votes. “This resolution is a reasonable, common-sense proposal with a lot of precedent to support it,” Sen. Cornyn said. “There are 26 laws that prohibit a minority of senators from filibustering certain kinds of measures. The judicial confirmation process should surely be added to this list.”
The resolution, introduced by Majority Leader Frist with Sen. Cornyn as an original co-sponsor, would gradually reduce the 60-vote requirement on successive cloture votes until a filibuster could eventually be ended by a simple majority, preventing endless delay of judicial nominees.
At the hearing, Cornyn noted that an independent judiciary is the foundation of government and that no society can be just or prosperous without the rule of law. “To protect the independence of our judiciary and to restore the unwritten rules long respected by the Senate until now, we should immunize the Senate’s process of confirming judges from filibuster abuse and approve S. Res. 138.”
Following the hearing, S. Res 138 could be marked-up by the Rules Committee and sent to the full Senate for a vote. A majority of the Senate is sufficient to approve a rules change. Under Senate Rule 22, debates on a rule change can be ended by a two-thirds vote.