Freshman Senators Seek 'Fresh Start' on Court Nominees

By Jeff Johnson | July 7, 2008 | 8:29 PM EDT

Capitol Hill ( - The newest members of the U.S. Senate Wednesday expressed their concern over the "apparent breakdown" of the judicial nomination and confirmation process. The bipartisan group of freshman senators sent a letter to Senate Majority Leader Bill Frist (R-Tenn.) and Senate Minority Leader Tom Daschle (D-S.D.) offering help in repairing the process.

"We...are a diverse group," the senators wrote. "But we are united in our commitment to maintaining and preserving a fair and efficient justice system for all Americans.

"And we are united in our concern that the judicial confirmation process is broken and needs to be fixed," they added.

The letter is signed by Sens. John Cornyn (R-Texas), Lisa Murkowski (R-Alaska), Elizabeth Dole (R-N.C.), Norm Coleman (R-Minn.), Lamar Alexander (R-Tenn.), Mark Pryor (D-Ark.), Lindsey Graham (R-S.C.), Saxby Chambliss (R-Ga.), Jim Talent (R-Mo.) and John Sununu (R-N.H.).

The senators acknowledge that the filibusters Democrats are currently using to block the nominations of Miguel Estrada to the D.C. Circuit Court of Appeals and Priscilla Owen to the 5th Circuit Court of Appeals may have been provoked by "how the nominees of a previous president were treated."

But Cornyn said Wednesday that none of those grudges, however, involve the freshman senators.

"Both of them have been voted out to the floor of the Senate, and they can't get an up-or-down vote of a bipartisan majority of the Senate to confirm them, and a bipartisan majority stands ready to do so," he complained. "The reason they can't get that vote is because there's a filibuster by senators who don't want there to be a vote."

Cornyn said it's not just the Senate schedule that is negatively affected by the filibusters.

"In my view, that is a perversion of the process," he said. "It's constitutionally questionable, and it doesn't serve the best interests of the American people who need and deserve to have highly qualified judicial nominees fill these positions and do what judges do, and that is dispense justice."

The former Texas Supreme Court justice noted that, while senior senators are playing politics with "highly qualified" judicial nominees, many Americans have to wait for justice.

"These are judicial emergencies. On the 5th Circuit, there are three vacancies," Cornyn explained. "And because of the workload, the old saying 'justice delayed is justice denied' is being born out.

"In this instance, people's cases aren't being heard because there just simply are not the judges to fill those slots," he added.

As chairman of the Senate Judiciary Subcommittee on the Constitution, Cornyn has scheduled a hearing for May 6 entitled Judicial Nominations, Filibusters and the Constitution: When a Majority Is Denied Its Right to Consent . He hopes the hearing will improve the cooperation between members of both parties and between freshmen and veteran senators.

"Frankly, the relationships between senators have degenerated to the point where I'm afraid it's affecting some of our other work and our ability to get other things done on behalf of the American people," Cornyn observed. "That's something we ought to work very hard to dig our way out of."

Sen. Charles Schumer (D-N.Y.), a leader of the ultra-liberal contingent blocking Estrada and Owen, has said that he will introduce a proposal to create a "bipartisan commission" in each state to select a single candidate for the White House to nominate for each judicial vacancy. Cornyn dislikes the idea for a number of reasons.

"I would have some questions as to whether that sort of delegation of authority would be constitutional," he said. "I don't think we're going to solve this problem by creating another layer of bureaucracy."

Cornyn said he has spoken with White House Counsel Alberto Gonzales and urged the president to "be engaged" in the discussions on overcoming the judicial nomination crisis.

The senator said administration officials seem willing to talk but are determined to maintain the president's constitutional prerogative to choose federal judges subject to approval by a simple majority of senators.

"It's like a marriage, in a way," Cornyn concluded. "We're bound together, and we've got to figure a way to work this out, and it's going to take some give and take on all sides."

If liberal Democrats are unwilling to yield, they may face another of the president's "constitutional prerogatives," the recess appointment.

"It's pretty clear what happens," Cornyn observed. "The fewer options each side of this controversy has, the more desperate they become to look for some way out.

"Recess appointments have been used in the past, and they could be used in the future," he added. "That's certainly the president's choice to make."

If comments from White House Press Secretary Ari Fleischer in the Wednesday briefing are any indication, the harder Democrats push against his nominees, the more likely Bush will be to resort to recess appointments.

"The Senate has a constitutional responsibility to hold an up-or-down vote on all judicial nominees within a reasonable amount of time," Fleischer said. "But some Democrats have abandoned that responsibility in favor of partisan politics and obstructionism.

"The Constitution is clear: A majority is required to confirm judicial nominees," he continued. "A minority of Senate Democrats is effectively changing the law with their obstructionist tactics."

E-mail a news tip to Jeff Johnson.

Send a Letter to the Editor about this article.