U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

90–460 DTP 2003

S. HRG. 108–227

JUDICIAL NOMINATIONS, FILIBUSTERS, AND THE

CONSTITUTION: WHEN A MAJORITY IS DENIED

ITS RIGHT TO CONSENT

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL 

RIGHTS AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MAY 6, 2003

Serial No. J–108–9

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

JOHN CORNYN, Texas, Chairman 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JAMES C. HO, Chief Counsel 

BOB SCHIFF, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

prepared statement and attachments ............................................................. 189

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 46

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 5

prepared statement .......................................................................................... 263

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 295

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 7

prepared statement .......................................................................................... 305

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 311

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 314

WITNESSES 

Calabresi, Steven, Professor of Law, Northwestern University Law School, 

Chicago, Illinois .................................................................................................... 32

Eastman, John, Professor of Law, Chapman University School of Law, and 

Director, Claremont Institute Center for Constitutional Jurisprudence, Orange, California .................................................................................................... 22

Fein, Bruce, Esq., Fein & Fein, Washington, D.C. ............................................... 24

Gerhardt, Michael, Hanson Professor of Law, William and Mary Law School, 

Williamsburg, Virginia ........................................................................................ 26

Greenberger, Marcia, Co-President, National Women’s Law Center, Washington, D.C. ........................................................................................................... 28

Kmiec, Douglas, Dean, Columbus School of Law, Catholic University of America, Washington, D.C. .......................................................................................... 31

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 10

prepared statement and attachment .............................................................. 353

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 16

QUESTIONS AND ANSWERS 

Wrtten questions submitted to all Panel II witnesses by Senator Cornyn ......... 63

Written questions submitted to Michael Gerhardt by Senator Leahy ................ 66

Written question submitted to John Eastman by Senator Cornyn ..................... 67

Responses of Steven Calabresi to questions submitted by Senator Cornyn ....... 68

Responses of John Eastman to questions submitted by Senator Cornyn ........... 70

Responses of Bruce Fein to questions submitted by Senator Cornyn ................. 82

Responses of Michael Gerhardt to questions submitted by Senator Cornyn ...... 87

Responses of Marcia Greenberger to questions submitted by Senator Cornyn .. 96

Responses of Douglas Kmiec to questions submitted by Senator Cornyn .......... 99

SUBMISSIONS FOR THE RECORD 

American Center for Law and Justice, Inc., Virginia Beach, Virginia, statement ...................................................................................................................... 108

Calabresi, Steven, Professor of Law, Northwestern University Law School, 

Chicago, Illinois, prepared statement ................................................................. 146

Carle, David, Press Secretary, Hon. Patrick J. Leahy, letter .............................. 152

Committee for Justice, Lawyers’ Committee on Supreme Court Nominations, 

Washington, D.C., September 29, 1968, statement (Cutler letter) .................. 196

Page

IV

Concerned Women for America, Thomas L. Jipping, Washington, D.C., statement ...................................................................................................................... 154

Congressional Research Service, Richard S. Beth and Christopher M. Davis, 

Government and Finance Division, Washington, D.C., memorandum ............ 185

Eads, Linda S., Associate Professor of Law, Southern Methodist University, 

Dallas, Texas, letter ............................................................................................. 226

Eastman, John, Professor of Law, Chapman University School of Law, and 

Director, Claremont Institute Center for Constitutional Jurisprudence, Orange, California, prepared statement and attachments ................................... 227

Fein, Bruce, Esq., Fein & Fein, Washington, D.C., prepared statement ............ 260

Gerhardt, Michael, Hanson Professor of Law, William and Mary Law School, 

Williamsburg, Virginia, prepared statement and attachment ......................... 265

Greenberger, Marcia, Co-President, National Women’s Law Center, Washington, D.C., prepared statement ....................................................................... 285

Griffin, Robert P., Traverse City, Michigan, letter and attachment ................... 220

Hyman, Andrew T., Attorney at Law, Ware, Fressola, Van Der Sluys & 

Adolphson LLP, Monroe, Connecticut, letter ..................................................... 299

Kmiec, Douglas, Dean, Columbus School of Law, Catholic University of America, Washington, D.C., prepared statement ....................................................... 307

McGinnis, John C., Professor of Law, Northwestern Law School and Michael 

B. Rappaport, Professor of Law, University of San Diego School of Law, 

joint letter ............................................................................................................. 321

Mikva, Abner J., Visiting Professor, Law School, University of Chicago, Chicago, Illinois, letter .............................................................................................. 325

Miller, Hon. Zell, a U.S. Senator from the State of Georgia: 

statement .......................................................................................................... 327

Wall Street Journal, March 10, 2003, commentary ....................................... 330

Paulsen, Michael Stokes, Briggs & Morgan Professor of Law, University of 

Minnesota Law School, Minneaplois, Minnesota, letter ................................... 332

People for the American Way, Elliot M. Mincberg, Vice-President and Legal 

Director, Washington, D.C., letter and memorandum ...................................... 334

Presser, Stephen B., Raoul Berger Professor of Legal History, Northwestern 

University School of Law, Chicago, Illinois, statement .................................... 341

Rotunda, Ronald D., George Mason University Foundation Professor of Law, 

George Mason University, Arlington, Virginia, letter ....................................... 349

Solum, Lawrence B., Professor of Law, University of San Diego, San Diego, 

California, letter ................................................................................................... 358

Specter, Hon. Arlen, Legal Times, July 8, 2002, article ....................................... 362

Washington Times: 

Bruce Fein, March 23, 2003, article ................................................................ 366

James L. Swanson, May 6, 2003, article ........................................................ 368

Bruce Fein, May 13, 2003, article ................................................................... 370

The White House: 

Alberto R. Gonzales, Counsel to the President, May 6, 2003, letter ............ 372

Office of the Press Secretary, news releases .................................................. 380

(1)

JUDICIAL NOMINATIONS, FILIBUSTERS, AND 

THE CONSTITUTION: WHEN A MAJORITY IS 

DENIED ITS RIGHT TO CONSENT 

TUESDAY, MAY 6, 2003 

UNITED STATES SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:45 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, Chairman of the Subcommittee, presiding. 

Present: Senators Cornyn, Craig, Hatch, Specter, Kyl, Feingold, 

Kennedy, Schumer and Durbin. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Chairman CORNYN. This hearing of the Senate Subcommittee on 

the Constitution, Civil Rights and Property Rights shall come to 

order. Before I begin an opening statement and turn over the floor 

to Senator Feingold as the Ranking Member of this Subcommittee 

for his opening statement, I would like to begin with a few brief 

introductory remarks as the newest member of a distinguished line 

of Senators who have chaired this Subcommittee, including most 

recently my distinguished colleague Senator Russell Feingold. 

Senator Feingold is an honorable and public-minded person, and 

I am glad we have already developed what I believe to be a good, 

cooperative bipartisan relationship. I think we agree, and he can 

certainly speak for himself, and no doubt will, but we agree that 

the current judicial confirmation process is broken and something 

needs to be done, and the purpose of this hearing is to talk about 

ideas about what can be done, and we have a distinguished panel 

of Senators to kick us off. I look forward to working with Senator 

Feingold and Senator Kennedy and all the members of this Subcommittee to try to fix the problem. I believe we need a fresh start 

in the U.S. Senate, and I hope that fresh start will begin today. 

Second, I would like to say that when I was informed that I 

would have the honor of chairing this Subcommittee I was looking 

forward to directing the attention of this distinguished Subcommittee to many important issues that face our country. For example, the ongoing war against terror raises important issues to 

our legal and constitutional system of Government. In particular I 

am concerned about the need to ensure continuity in Government 

2

should a catastrophic event, God forbid, befall the Washington, 

D.C. community, including the Congress, the Executive Branch or 

the Supreme Court, issues that raise important constitutional 

questions which may even require a constitutional amendment to 

address. 

For another example, Senators Kyl and Feinstein have worked 

long and cooperatively to introduce a constitutional amendment to 

protect the rights of crime victims in the country. I am pleased to 

be a cosponsor of that particular amendment and I look forward to 

chairing the Subcommittee markup on it. 

So there are many other topics besides judicial confirmation that 

I would like the Subcommittee to focus on and I am sure that Senator Feingold agrees with me that there are many that need to be 

addressed. But unfortunately the Senate now faces a problem of 

governance, and I think a problem of constitutionality within the 

Senate itself. That problem demands our attention and demands 

the attention of this Subcommittee. Although there are many other 

important issues that I would very much like for the Subcommittee 

to focus on, the current judicial confirmation crisis raises important 

issues impacting Senate governance and our constitutional democracy. The implications of this crisis for our fundamental Democratic 

principle of majority rule are before us right here, right now in this 

body, and they demand the Subcommittee’s attention. 

I open this hearing today to focus on judicial nominations, filibusters and the Constitution when a majority is denied its right to 

consent. 

This week the Senate will mark a rather dismal political anniversary. Two full years have passed since President Bush announced his first class of nominees to the Federal Court of Appeals. 

In my opinion it is an exceptional group of legal minds. Some of 

them however still await confirmation. What is more, two of them 

are currently facing unprecedented filibusters, and more filibusters 

of other nominees may be threatened. 

Never before has the judicial confirmation process been so broken 

and the constitutional principles of judicial independence and majority rules so undermined. 

I would like to take just a few moments to discuss those principles here. 

I also discussed those in an op-ed published just this morning on 

the Wall Street Journal’s opinionjournal.com website, and without 

objection I would like that to be made part of the record. 

The fundamental essence of our democratically-based system of 

government is both majestic and simple: majorities must be permitted to govern. As our Nation’s founding fathers explained in 

Federalist No. 22, ‘‘the fundamental maxim of republican government...requires that the sense of the majority should prevail.’’ Any 

exceptions to the doctrine of majority rule, such as any rule of a 

supermajority vote being required on nominations, must, in my 

view, be expressly stated in the Constitution. For example, the 

Constitution expressly provides for a supermajority, two-thirds voting rule, for Senate approval of treaties and other matters, and 

that is not the case, however, with regard to judicial nominees. 

At the same time we of course have an important tool here in 

the United States Senate called the filibuster. Let me be clear in 

3

stating that the filibuster, properly used, can be a valuable tool in 

ensuring that we have a full and adequate debate. Certainly not 

all uses of the filibuster are abusive or unconstitutional. As we 

Senators are often fond of pointing out, particularly when we are 

in a mood to talk, the House of Representatives is designed to respond to the passions of the moment. The Senate is also a democratic institution governed by majority rule, but it serves as the 

saucer to cool those passions and to bring deliberation and reason 

to the matter. The result is a delicate balance of democratically 

representative and accountable Government, and yet also, deliberative and responsible Government. 

But the filibuster, like any tool, can be abused. I have concerns 

about its abuse here. Today a minority of senators appears to be 

using the filibuster, not simply to ensure adequate debate but to 

actually block some of our Nation’s judicial nominees and to prevent those seats from being filled by people of the President’s 

choosing by forcing upon the confirmation process a supermajority 

requirement of 60 votes. 

The public’s historic aversion to such filibusters is well grounded. 

These tactics not only violate democracy and majority rule, but arguably offend the Constitution as well. Indeed, prominent lawyers 

like Lloyd Cutler and Senators like Tom Daschle, Joe Lieberman 

and Tom Harkin have condemned filibuster misuse as unconstitutional. 

Time does not permit me to read the previous statements of 

these individuals condemning filibusters as unconstitutional, but 

without objection, I would like to have them submitted and made 

part of the record. 

Moreover, abusive filibusters against judicial nominations 

uniquely threaten both presidential power and judicial independence, and are thus far more legally dubious than filibusters of legislation, an area of preeminent Congressional control. 

To justify the current filibusters some have pointed to Abe 

Fortas. President Lyndon Johnson nominated Fortas to be Chief 

Justice in 1968, but what is critical to understand about the Fortas 

episode is that majority rule was not under attack in that case. 

Dogged by allegations of ethical improprieties and bipartisan opposition, Fortas was unable to obtain the votes of at least 51 Senators 

to prematurely end debate. That was a serious problem for Fortas, 

because if there were not even 51 Senators that wanted to close the 

debate, it was far from clear whether a simple majority of Senators 

present and voting would vote to confirm. And of course, history 

tells us that rather than allow further debate, President Johnson 

withdrew the nomination all together just 3 days later. 

Nor do the Sam Brown or Henry Foster episodes serve as precedent. There debate had not even begun when their supporters 

sought to end the debate prematurely, so the filibuster there was 

simply an effort to ensure debate and not to alter the constitutional 

standard. 

It is also worth noting back in 1968 future Carter and Clinton 

White House counsel, Lloyd Cutler, along with numerous other 

leading members of the bar and the legal academy, signed a letter 

urging all Senators that nothing would more poorly serve our constitutional system than for the nominations to have earned the apVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
4

proval of the Senate majority, but to be thwarted because the majority is denied a chance to vote. Without objection, the Cutler letter will, also be entered in the record. 

But of course, as I mentioned, Fortas was not even able to command 51 votes to close debate, and President Johnson withdrew 

the nomination as a result, so that letter was really a moot point. 

The Fortas episode though is a far cry from the present situation, 

and the Cutler letter condemning filibusters of judicial nominations, when used to deny the majority its right to consent, most 

certainly would apply today. After extensive debate, Miguel 

Estrada, Priscilla Owen and other nominees can be said to enjoy 

bipartisan majority support, yet they face an uncertain future of indefinite debate. 

By insisting that ‘‘there is not a number of hours in the universe 

that would be sufficient’’ for debate on certain nominees, some Senators concede that they are using the filibuster, not to ‘‘ensure adequate debate’’, but to change constitutional requirement by imposing a supermajority requirement for judicial confirmations. 

Whether unconstitutional or merely destructive of our political 

system, the current confirmation crisis cries out for reform. As all 

10 freshmen Senators, including myself, stated last week in a letter 

to Senate leadership, ‘‘we are united in our concern that the judicial confirmation process is broken and needs to be fixed.’’ Veteran 

Senators from both parties expressed similar sentiments, and some 

of them are here in our first panel today. 

Accordingly, today’s hearing will explore various reform proposals. Our first panel is composed exclusively of Senators, actually 

two Democrats and one Republican Senator. All of them members 

of this body, have each experienced the current crisis firsthand. All 

of them have offered proposals for reform. These proposals will be 

debated, and they should be, but what is important is that these 

Senators acknowledge the current confirmation crisis and have 

urged reform, and I certainly want to congratulate them for doing 

so. 

Our second panel is comprised of the Nation’s leading constitutional experts who have studied and written about the confirmation 

process. Many of them have been called upon to testify in the past 

by members of both political parties, and I am pleased to have all 

six of them here today. They are a distinguished group, and I look 

forward to formally introducing them to the Subcommittee in just 

a few minutes. 

I want to close by saying that the judicial confirmation process 

has reached the bottom of a decades-long downward spiral. Our 

current state of affairs is neither fair nor representative of the bipartisan majority of this body. For democracy to work and for the 

constitutional principle of majority rule to prevail, obstructionism 

must end, and we must bring matters to a vote. As former Senator 

Henry Cabot Lodge famously said of filibusters: ‘‘To vote without 

debating is perilous, but to debate and never vote is imbecile.’’ Two 

years is too long, and I believe the Senate needs a fresh start. 

And with that, I will turn the floor over to the ranking minority 

member of the Subcommittee, Senator Feingold, and I know Senator Kennedy has indicated that he has a pressing engagement, 

5

and Senator Feingold and I are going to try to work to accommodate him, but at this point let me now recognize Senator Feingold. 

[The prepared statement of Chairman Cornyn appears as a submission for the record.] 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I will be brief so 

that Senator Kennedy has an opportunity to speak before he has 

to go. 

I want to thank you, Mr. Chairman, for your very kind remarks 

about me, for the extremely courteous way in which you have started your job as Chairman, coming to my office and meeting with me 

about the Subcommittee and the way that you have approached me 

on all of these issues, I appreciate it, and I look forward to this opportunity to work together. 

I also was interested in your brief sketch of some of the issues 

you were interested in for the Subcommittee that you just shared, 

including of course the fact that we want to play whatever role we 

can in trying to resolve this very difficult problem with regard to 

judges. This is not the normal province of our Subcommittee. It is 

that of one of the other Subcommittees but this hearing is apparently about the constitutional issues that may or may not exist in 

this regard. Nonetheless, I want to say that I agree with we have 

got to somehow deal with this logjam, and I want to be a positive 

force to make that happen. 

Let me also say, since this is a Constitution Subcommittee, that 

I hope that the work of this Subcommittee will continue to address 

that very document and protecting that very document that is the 

foundation for today’s hearing. That means to me that this Subcommittee has to continue to fight to protect the civil liberties of 

all Americans against some of the excesses that I believe have occurred in the context of the post 9/11 world, understandably, but 

that we have to deal with those. 

I am going to tell you, Mr. Chairman, and you know this already, 

I hope to get through another Congress without amending the Bill 

of Rights. I think it is a great thing that Congress has never chosen to amend the Bill of Rights, and there are various proposals 

that you and I are going to disagree about where I will fight 

against this, but we will fight in a courteous manner, and it will 

be I am sure a very interesting experience. 

Finally, I appreciate the collegial way in which you and your 

staff have handled the preparations for this hearing. This is an 

issue in which Senators and others involved in the process have 

strong and passionately held views, tempers are short and relations 

are frayed in our Committee in large part because of this issue of 

judicial nominations. I hope that with some reasoned discussion 

and negotiation we can get past this very rough spot in the Committee’s history and return to more constructive work together. If 

this hearing is the beginning of an effort to reduce the level of confrontation on judicial nominations, that would be a very good thing. 

Unfortunately, I have to say, Mr. Chairman, the title of the hearing suggests that this could be intended to turn up the heat rather 

than cool things down. The title of the hearing I believe is: ‘‘JudiVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
6

cial nominations, Filibusters and the Constitution: When a Majority is Denied its Right to Consent.’’ So take it for what it will. I 

am not sure that is the most neutral title we could have had. 

The argument recently advanced on the floor by a number of 

Senators that filibusters of judicial nominees are unconstitutional 

seems to be part of a campaign by some of political intimidation 

launched by supporters of the President’s nominees. If this hearing 

is a prelude to a floor effort to rewrite the Senate rules or circumvent them through parliamentary tactics, I have to say I doubt 

very much they will succeed, and I am sure that they will be met 

with stiff resistance. 

The end result could be to take the tensions we feel in this Committee and spread them to the floor of the Senate, and that would 

be a real shame in my view, and I honestly believe the Chairman 

does not want that to happen. 

It is also a shame that those who support the President’s nominees are trying to inflate what is essentially a political fight into 

a constitutional crisis. For those of us who take the Constitution 

seriously it is actually odd to hear colleagues essentially arguing 

that one is violating one’s oath of office by voting not to end debate 

on a nomination. As some in the audience may know, I spent 7 

years in this body fighting to pass a campaign finance reform bill. 

For years that effort was stymied by filibusters. We had a majority 

of Senators after 2 years, McCain and I did. We did not say that 

it was unconstitutional that our bill was not passed. We said this 

is the way the Senate works and the way it has worked certainly 

in my lifetime. Senators who have supported reform had many 

spirited and sometimes even bitter debates with Senators who opposed our bill. Never did we contend that they were violating their 

oaths of office by using every tool available to oppose a bill with 

which they strongly disagreed. 

Since the hearing title raises the question of the constitutionality 

of the filibuster, let me very briefly give my view up front. The 

Constitution does not prohibit opponents of a judicial nominee, or 

any nominee for that matter, from using a filibuster to block a final 

vote on the nominee. The majority does not have a constitutional 

right to confirm a nominee as the title of the hearing implies. I am 

sure we will hear more on this from our witnesses today, but I 

must say I am eager to hear the argument that would overturn the 

practices of the Senate dating back more than a century. 

If the arguments that are advanced today are correct, then Republicans acted unconstitutionally in 1995 when they defeated the 

nomination of Henry Foster to be Surgeon General by using a filibuster. If this is all to be simply about majorities and is somehow 

mandated by the Constitution, they violated the Constitution when 

they required cloture votes before ultimately confirming Stephen 

Breyer, Rosemary Burkett, H. Lee Sarokin, Richard Paez and Marsha Berzon to circuit court judgeships, David Sacher to the Surgeon General’s office, and Ricki Tigert to the FDIC, Walter 

Dellinger to the DOJ’s Office of Legal Counsel, and the current 

Governor of Arizona, Janet Napolitano, to be U.S. Attorney. They 

violated their oaths of office when they forced the nomination of 

Sam Brown to be withdrawn because they refused to end the debate on his nomination. 

7

These are just the cases where a cloture vote was required to get 

a nomination through. I will not even start on the list of nominees 

who never even got a hearing or vote in the Judiciary Committee, 

but there were dozens of them. Was not the majority denied its 

right to consent just as much in those cases? Is there any meaningful constitutional difference between a filibuster on the one hand 

and on the other hand a hold on the Senate floor, or a wink and 

a nod between a Committee Chairman and a member who just 

does not like a nominee? I assume our witnesses will enlighten us 

if there is. 

Mr. Chairman, in the end, the seemingly insurmountable differences we have on judicial nominees can be resolved only the way 

that seemingly insurmountable differences are resolved in almost 

all other hotly contested issues in the Senate, and as you said, that 

is through negotiation and compromise. Of course for there to be 

a compromise, both sides have to be willing to engage in that effort. 

So far I have to say the White House seems intent on forging 

ahead with its efforts to push through as many nominees with the 

most extreme views as possible in the shortest possible time. 

The majority on this Committee have participated in that strategy by pursuing a ‘‘take no prisoners’’ approach, disregarding decades of practice and precedent regarding the scheduling of hearings 

and votes on nominees. That is why we find ourselves constantly 

fighting instead of trying to work out a solution. I do think it is 

possible, Mr. Chairman, for reason to prevail, reducing the need for 

displays of raw political power. As I have told you before, Mr. 

Chairman, both publicly and privately, I am sincerely interested in 

working with you to try to resolve this problem. I remain hopeful 

that we can do that despite the title and the thrust of this hearing 

today. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Chairman CORNYN. Thank you, Senator Feingold. 

Senator Kennedy. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. I want to join Senator Feingold in expressing our appreciation for all the courtesies 

that you have shown us, and the seriousness with which you have 

undertaken the leadership on this Committee, and I am grateful 

for the opportunity to say a word about this issue which is of such 

enormous importance and consequence for our country, and for our 

country really to understand what both the historic role has been 

and what our founding fathers really intended. 

It is always interesting in a hearing such as this, as we are trying to find out where authority and responsibilities lie, to look back 

at the Constitutional Convention itself. In the Constitutional Convention, when it met in Philadelphia from late May until mid September in 1787, on May 29th the Convention began its work on the 

Constitution with the Virginia Plan introduced by Governor Randolph, which provided that a national judiciary be established or be 

chosen by the national legislature, and under this plan the PresiVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
8

dent had no role at all, in the selection of judges. When this provision came before the Convention on June 5th, several members 

were concerned that having the whole legislature select judges was 

to unwieldy and James Wilson suggested an alternative proposal 

that the President be given the sole power to appoint judges. That 

idea had no support. Rutledge of South Carolina said that he was 

by no means disposed to grant so great a power to any single person. James Madison agreed that the legislature was too large a 

body, and stated that he was rather inclined to give the appointment power to the Senatorial Branch of the legislative group, ‘‘sufficiently stable and independent to provide deliberate judgments,’’ 

were the words he used. A week later Madison offered a formal motion to give the Senate the sole power to appoint judges, and this 

motion was adopted without any objection whatsoever at the Constitutional Convention. 

On June 19th the Convention formally adopted the working draft 

of the Constitution, and it gave the Senate the exclusive power to 

appoint the judges. July 18th the Convention reaffirmed its decision to grant the Senate its exclusive power. James Wilson again 

proposed judges be appointed by the Executive, and again his motion was defeated overwhelmingly. The issue was considered again 

on July 21st, and the Convention again agreed to the exclusive 

Senate appointment of judges. In a debate concerning the provision, George Mason called the idea of Executive appointment of 

Federal judges a dangerous precedent. Not until the final days of 

the Convention was the President given power to nominate the 

judges. So on September 4th, two weeks before the Convention’s 

work was completed, the last important decision made by the 

founding fathers, the Committee proposed that the President 

should have a role in selecting judges. It stated the President shall 

‘‘nominate, and by and with the advice and consent of the Senate, 

shall appoint the judges of the Supreme Court.’’ The debates make 

clear that while the President had the power to nominate, the Senate still had a central role. Governor Morris of Pennsylvania described the provision as giving the Senate the power to appoint the 

judges nominated to them by the President. And the Convention, 

having repeatedly rejected the proposals that would lodge exclusive 

power to select judges to the Executive Branch, could not possibly 

have intended to reduce the Senate to a rubber stamp role. 

It is important that Americans understand what our founding fathers deliberated, what they believed, what they thought they were 

achieving with the power of the United States Senate not to be a 

rubber stamp for the presidency, and they also expected advice and 

consent. 

The letter to the Senate leaders by freshman Senators emphasizes their concerns about the state of the judicial nominations and 

confirmation process. It is clear that all of us in the Senate have 

concerns, but the letter, goes on to say that the judicial confirmation process is broken and needs to be fixed. Many Democratic Senators, however, feel that the part of the process that is broken is 

the nomination process: The Constitution gives the Senate the 

power of ‘‘advice and consent’’. The Senate’s role of advice and consent was fashioned to ensure that we can meet the responsibilities 

as a Nation. Our earliest predecessors in the first decade of the 

9

Senate’s history rejected a rule providing for motions to close debate, any motions to close debate. For the rest of the history, our 

rules have provided that debate, which is the lifeblood of our 

power, cannot be easily cut short. For 111 years unanimous consent was required to end debate interested United States Senate. 

You had to get unanimous consent. All Senators had to consent. 

That was unanimous for 111 years. For the next 58 years it was 

two-thirds, and now it is 60 that are required. 

We have had an amazing life experience for this country and 

when you review what the founding fathers had intended and expected and what the rules had shown, it is clear that it was the 

function of advice and consent. It was the involvement of the 

United States Senate in the consideration and voting of various 

nominees on it in this process, that has contributed to this experience. We should all take the time to review that, because it has 

been the experience in the United States when this process has 

worked. That is not the way it is working at the present time. 

Unfortunately President Bush has clearly demonstrated his intention to nominate judges who share the Administration’s partisan, right-wing ideology. In his campaign for the presidency, he 

often said he would nominate judges in the mold of Justice Scalia 

and Justice Thomas, and that is exactly what he is doing. The 2000 

election was very close, and the Senate is very narrowly divided as 

well, and it is no surprise that we are divided over the appointment 

of judges. President Bush has no popular mandate from the American people to stack the courts with judges who share his ideological agenda, and the Senate has no obligation to acquiesce in that 

agenda. We would be failing our responsibilities if we were just to 

be a rubber stamp. We certainly have no obligation to ignore or 

suspend our long-standing rules and become a rubber stamp. 

I am hopeful that today’s hearing will clear up any doubts about 

this issue. I am eager to work with our Chair and our other members to go back to the times that our founding fathers anticipated, 

where there would be the full kind of consideration in working with 

the Senate, as the founding fathers intended, and that we would 

move through a process where we would have the ample examination of the qualifications of the nominees and then the debate, and 

we would reach a conclusion and a decision. 

I appreciate the Chairman having these hearings, and hopefully, 

the American people will better understand all of our responsibilities as well as the process that has been used in the past, what 

our founding fathers intended and what is really important in 

terms of ensuring that we have an independent judiciary that is 

worthy of our founding fathers. 

I thank the Chair. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Chairman CORNYN. Thanks, Senator Kennedy. 

Senator Hatch, Chairman of the Judiciary Committee as a whole 

cannot be here today, but he would like to have his statement entered into the record regarding the history of judicial nominees 

during the first Bush and Clinton administrations from his perspective, and without objection, that will become part of the record. 

10

I know Senator Specter had a pressing engagement. As the senior Senator I was going to recognize him first, no disrespect to Senator Schumer. I see Senator Hatch here, if I may withhold a second. 

Senator Hatch said he would withhold any further statement 

than his written statement as part of the record. 

[The prepared statement of Chairman Hatch appears as a submission for the record.] 

Chairman CORNYN. I would now like to introduce our first panel, 

and I know Senator Specter intends to return, but it is made up 

exclusively of Senators, and as I said, it is a bipartisan group, as 

it turns out, two Democrats and one Republican. I was going to 

apologize to Senator Specter about that, but in the interest of bipartisan approach to reform I think it is quite appropriate. 

I am pleased to have this distinguished group here today. They 

recognize, and I think by virtue of their recommendations for reform, that the current judicial confirmation process is broken, in 

need of repair. They each have proposals and very provocative and 

very interesting proposals, and that of course is exactly the point 

of what I hoped we would get to today, is different ideas about how 

we can find ourselves out of this wilderness and into the path or 

more productive, and still, as Senator Kennedy reminds us, a constitutional process of advice and consent, but one that does not result in obstruction, but does allow full debate of all the President’s 

nominees in an up or down vote, and may the majority have its 

will. 

At this point I would like to ask Senator Schumer, who I know 

has written to the President and made a specific proposal to make 

any opening statement he would like. Senator Schumer, we are 

glad to have you here today. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I very much appreciate the opportunity to sit on this side of the panel, am proud 

to be a member of the panel and will join you on the other side, 

time permitting, and also want to join my colleagues in saying that 

this is an important hearing, it is a timely hearing, and we all appreciate the courtesy which you have extended to all of us. 

I am always interested in words. You said this is a panel of Senators. I guess it is a panel of Senator right now. It is the first time 

I have been referred to as a group. But in any case, few other 

words are little more disconcerting. It is almost there is a dictionary here, a 1984 dictionary. I was listening to the words ‘‘crisis,’’ there is a crisis on the bench because of the vacancies. We 

have fewer vacancies now than we have had in 13 years. Where 

was all the crisis over the last decade when the President was of 

another party and judges were routinely held up? Again, there is 

such a double standard. I worry about it. If it was a crisis now with 

a 5.6 percent vacancy, then why was it not a crisis then? 

How about obstruction? Well, there is a brand new definition of 

‘‘obstruction’’ of 123 judges that have been brought to the floor. 121 

have been approved. In other words, the definition that some of my 

colleagues in the White House has of obstruction is you have to apVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
11

prove every one of our judges or you are an obstructionist. When 

I say to my constituents, they say, ‘‘What is going on with the 

judges?’’ And I say, ‘‘I voted for approximately I think it is, 113 out 

of 120,’’ they say, ‘‘Oh, never mind. You are doing fine. That seems 

to be a pretty good average to me.’’ So this idea of obstruction is 

again taking language and twisting it. You have to believe that 

every single judge has to be approved by a President, and I will get 

into this later, who has made ideology far more of a standard in 

choosing judges than any President in history. I think words are 

being twisted. 

And finally, filibuster. First time there is a filibuster? Not so. It 

is the first time there has been a successful filibuster, but members 

on the other side of the aisle were tempted to filibuster Paez and 

Berzon when I was here. Senator Feingold mentioned a list of other 

filibusters. All of a sudden, now that the shoe is on the other foot, 

we are saying these are no good and we have to examine them. I 

am willing to examine them. I think that the title of this hearing, 

‘‘Judicial Nomination, Filibuster and the Constitution: When a Majority is Denied its Right to Consent’’ is a bit loaded, but it is a 

good thing to debate. I think it is fine, and I am happy to debate 

it. 

So I would like to go back to the Constitution. Senator Kennedy’s 

peroration there on the Constitutional Convention I think is a wise 

and good one, but let us go to the Constitution itself. Now, it is one 

thing to have a discussion regarding the constitutionality of filibusters, and I will discuss that in a minute. I think it is way off base. 

I have never heard before people suggesting that filibusters are unconstitutional, and again, the worst way to legislate is doing it on 

something so traditional as this, and something that has existed in 

the Senate for so long and separates the Senate as the ‘‘cooling 

saucer’’ from the House, words of, I believe it was, Madison or 

Monroe, whoever called us the ‘‘cooling saucer’’ when explaining it 

to Jefferson who thought the Senate was a bit too regal for American tastes when he came back from Paris, after seeing the Constitution written. But it is a whole other matter to suggest that the 

majority has a right to consent. 

I have poured over this little book when I saw the title of the 

hearing, this Constitution. I do not see anything in here about the 

right to consent for anyone, but certainly not the majority. As my 

colleagues well know, the framers wrote the Constitution in many 

ways to limit the majority’s power. They were worried about regal 

power, King George. They wanted to make sure the President was 

not regal, was not king-like, was not monarch-like. They were also 

worried about, Alexander Hamilton described it, my own fellow 

New Yorker, as ‘‘mobocracy.’’ And they wanted checks. And in fact, 

the first thing they did after the Government, this great Government, it was called by the founding fathers, ‘‘God’s noble experiment.’’ I truly believe that still exists today. We are God’s noble experiment. It is an amazing thing this democracy. The founding fathers were the greatest group of geniuses put together. They truly 

were a group. But this idea of majority power? Well, maybe we 

should hold hearings on the election of the President in the year 

2000 or make that the second chapter in this. That was a majority 

vote. The electoral college, is that unconstitutional even thought it 

12

is in the Constitution, because it will deny a majority, as it did in 

2002, the right to choose their President? Again, the selective nature of choosing words, the selective nature of talking about majority, when it fits your case, but ignoring it when it does not, nope, 

I do not think so. 

When you go back and read the debates of the Constitutional 

Convention you see the framers struggle to find the right balance 

of power. If anything, they leaned to the primacy of the Legislative 

Branch, not the President, in the selection of judges. 

I am going to skip all the detail here because I think Senator 

Kennedy went over it very, very well. So let us get into how we 

got to where we are and then I will talk about my proposal. Probably the most important thing I have written as Senator was an 

op-ed piece that said when judges are nominated, we ought to take 

ideology into effect, that we ought to look at their judicial philosophy, that that was not only our right but our obligation. Let me 

just say I have always had three criteria in the role I play in selecting judges in New York State. They are: excellence, legal excellence, moderation. I do not like judges too far right or too far left 

because they tend to want to make law rather than interpret law, 

and it was the founding fathers who said, none other than they, 

that judges should be interpreting the law, and those who have 

strong ideological disposition, tend to want to impose their views. 

The third is diversity. I believe the bench should mirror America, 

not the white males. 

Well, on one in three President Bush has done a good job. I think 

his nominees are by and large legally excellent. They are smart. 

They are scholarly. They are well rehearsed in the law. And he has 

done a good job on diversity. But it is on ideology, moderation, that 

I choose to differ with him. I believe that this President, far more 

than any other, even more than Ronald Reagan, chooses judges 

through an ideological prism, and then when he gets some small 

amount of resistance in the grand scheme of things from the Senate, instead of coming and meeting with us and advising and consenting, tries to change the rules, and that is not fair. 

Now, if you think ideology should not play a purpose, let us continue the constitutional history for a minute. In 1795 Chief Justice 

John Jay was stepping down, and President Washington nominated 

John Rutledge as his successor. Before the Senate voted on Rutledge’s confirmation, Rutledge gave a speech attacking the Jay 

Treaty as excessively pro–British, which at the time would have 

been sort of like a nominee today going out and giving a speech defending the French. The Senate had just recently ratified the Jay 

Treaty, and in their voting, it was the Jay Treaty that caused them 

to vote down the Rutledge nomination 14 to 10. The Senate at that 

time was composed of a majority of founding fathers. And therefore, it is obvious that they thought these type of issues were relevant. These are the people who wrote the Constitution, and so all 

this hue and cry that ideology should not be part of the consideration, that we should not try to look for judges, my case moderate 

judges, but you can look for any kind you want, that was not a majority, by the way. It was six, by the way. The majority was in 1790 

when the Constitution first started, there were six members of the 

Senate who were members of the Convention. Three voted for RutVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
13

ledge, three voted against. But here you had many of the founding 

fathers. Not a word was said that voting for the Jay Treaty was 

out of line. 

So in one fell swoop the Senators of that first Congress made 

clear that the political views, let alone judicial philosophy, are legitimately considered in this process. That is how it was for the 

first hundred and some odd years. 

What happened was—let us bring it up to more recent history—

ideology began to recede in the selection of judges, and during the 

Truman and Eisenhower years there was not too much debate 

about them because there seemed to be a consensus. But for some 

reason, and it was probably not intended, the Court became very 

liberal, led by people who were not nominated as great liberals. 

Earl Warren, Republican Governor of California, Hugo Black, who 

had had a different past. He was from Alabama. I think he was a 

member or it was reputed he was a member of the Ku Klux Klan. 

And so a conservative movement started and said judges should 

not make law, that they were sort of coming up with their own 

ideas as opposed to interpreting the law. That was a conservative 

movement, and they called it ‘‘let’s go back to strict constructionist.’’ 

By the way, just parenthetically, I was in college at the time and 

I remember debating this issue, and even then I said, even though 

I agreed with a lot of what the judges were doing, that it was a 

bad idea to have judges make law, that it is the legislature that 

should make law. 

Ronald Reagan came in and he started nominating some very 

conservative judges. He started nominating conservative judges. 

But no one made much of a cry because the bench then was quite 

liberal, and if you go by a test of moderation, of balance, not within 

each individual but within the bench, it probably was good, it probably was good. 

But then as that began to continue, ideology began to be discussed under the table, and so Democratic Senators would vote 

against the Republican Senator, the stated reason not being they 

disagreed with the ideology, Democratic Senators voting against 

the Republican nominee, but rather because they looked back and 

found that he smoked marijuana in college. And then Republicans 

might vote against a Democratic nominee because he went to the 

movie shop and took out the wrong movie at the video shop, and 

the process became demeaning, and we really were not looking for 

the moral purity of these nominees. It was an excuse. It was a Kabuki game, but under the table it was all ideology, and people got 

upset with it. I would not say the Bork nomination fell into this 

category, but perhaps Clarence Thomas’s did. He should have been 

debated strictly on ideology, on how his views were, whether he 

was moderate enough for the Court. 

In 1999 I sort of began talking to my colleagues and said we 

ought to bring this above the table. It is demeaning for the process 

to say, well, someone did some minor transgression in college, out 

with him. If that was really the issue, then we would have found 

Democrats and Republicans voting about evenly against the marijuana smoker or the video shop trespasser. They did not. 

14

So I think that that argument has now gained sway, and, yes, 

we are sort of at a deadlock, but this was not started by Democrats 

in the Senate. This was brought on because President Bush, as he 

said it in his campaign, he said he chooses to nominate people in 

the mold of Scalia and Thomas, who I think by most objective 

standards would not be moderate or mainstream, but they are at 

the far right end of the judicial nominees. Clinton did not do that 

much of that. He had a few liberal nominees, but by and large, his 

nominees were not ACLU attorneys or legal aid lawyers. They were 

prosecutors. They were law firm partners. Bush’s nominees have 

had a hugely ideological cast, and we have no choice but to bring 

out what they had to say. Then when Miguel Estrada came up, he 

would not even say what his views were because I think he felt—

I do not know this, but my view is that he felt, and his handlers 

felt, that if he said what he thought, he would not be nominated. 

So he either had to dissemble or had to avoid stating anything, 

which he did. 

That is when our caucus really got together and said enough of 

this, enough of this. It is demeaning to the process, to the advise 

and consent process, to have a nominee who will avoid every question. He said he could not answer certain questions generally on 

his views because it would violate Canon 5. Well, if I asked him 

how he felt about ruling on Enron versus the United States, he 

might violate Canon 5. But I asked his views on the Commerce 

Clause and how much an active role the Federal Government 

should have in regulating corporations. That is not a violation of 

Canon 5, and if it is, almost every nominee we have approved 

should not be on the bench because they violated Canon 5, because 

they have answered those kind of questions. 

So when Miguel Estrada refused to even answer questions and 

really eviscerate the advise and consent process, we said enough. 

And I will continue to oppose nominees that I think are way out 

of the ideological mainstream, as long as President Bush tends to 

nominate nominees who are not in balance in terms of the thinking 

of this country. That does not mean each nominee Homeland Security to be a right down the middle moderate, but if you are going 

to nominate some from the hard right, nominate a few who are a 

little more liberal to balance them. That is not happening. 

So we are deadlocked, we are deadlocked. And the deadlock will 

remain unless we can break through, and what I have tried to do 

in my proposal is to have a true compromise. I would prefer the 

President take ideology out of the process all together, but I do not 

think that is going to happen, and he made a campaign promise 

that he would not, so that is not going to happen. 

I proposed a compromise which I think is a down the middle and 

fair compromise to break through this deadlock. Senator Specter’s 

proposal, I respect it, but it basically means that we will have to 

wave the white flag. It says the President’s nominees, as I understand his proposal, will come to the floor after a period of time. And 

that would mean the President would not win 121 out of 123, but 

would win 123 out of 123. It is not good for the process. There 

should be advise and consent, and in fact, even when one party 

controls the presidency and both houses, the other party should be 

15

involved in the process. I think that is what the founding fathers 

intended when you read the Federalist Papers and commentary. 

So I have proposed a true compromise I think. The proposals 

that my friends have offered, sort of unilateral disarmament, we 

are not going to accept it, and we will be back where we have been 

to begin with. 

Let me go over what ours is. It is based on nominating commissions. They have worked in many States, and we would create 

nominating commissions in every State and every circuit. We 

would give the President and the opposition party leader in the 

Senate the power to name equal numbers of the members of each 

commission. We would instruct each commission to propose one 

name for each vacancy. The commission composed of half from one 

party, half from the other, would have to come together with one 

nominee. If they came together with two nominees, it would not 

work because the Republicans would propose one, the Democrats 

would propose another, and the President would just nominate the 

Republican one. Let them come together and propose one nominee. 

Not every nominee would be just a down the middle moderate. The 

commission might decide, we will nominate someone more conservative for this position, this vacancy, and then we will move and 

nominate someone a little more liberal for the next nomination, for 

the next vacancy. 

Barring the discovery of anything that disqualifies the person for 

service, both the President and the Senate would agree to nominate 

and confirm him or her. This would be a gentleman’s agreement. 

There would be nothing written into law and the process could 

break down and the commission would not work any more and we 

would go back to the old constitutional safeguards. But this commission would indeed provide the necessary framework for compromise and avoiding the kind of animus that we have seen where 

each side feels that they are right and they are not giving in. It 

is a 50–50 proposition, and some people may not want that. It preserves balance while removing politics, partisanship and patronage 

from the process. 

Again, I want to thank you, Mr. Chairman, for holding this hearing. I think discussions like this are great. They are good for the 

health of the republic, whether we agree or disagree, and I look forward to continuing on this when we go to our second panel. Thank 

you. 

[The prepared statement of Senator Schumer appears as a submission for the record.] 

Chairman CORNYN. Thank you, Senator Schumer, and I too want 

to thank you for your enthusiastic articulation of your views of 

where you think the process has broken down. Needless to say 

there are those who disagree, but I agree that it is good to have 

that debate. In a moment I know Senator Specter is going to be 

joining us. he had a conflict so I want to make sure we accommodate him, and I know all of the Senators have a lot of conflicting 

time commitments. 

In the interest of completeness though, let me go ahead, and 

without objection, I will have made part of the record the response 

which I understand the White House has made today, May the 6th, 

2003. I will just read sort of what I think the conclusion is here. 

16

Senator SCHUMER. I have not seen it yet, so I look forward to 

hearing it. 

Chairman CORNYN. We will make sure you get a copy. I just had 

one handed to me a moment ago. 

It says, ‘‘The solution of the broken judicial confirmation process 

is for the Senate to exercise its constitutional responsibility to vote 

up or down on judicial nominees within a reasonable time after 

nomination, no matter who is President or which party controls the 

Senate.’’ 

Senator Specter, thank you for rejoining us, and I know you had 

a conflict in your calendar, and I am glad you are back, and without further ado, I would like to recognize you, please, for purposes 

of your opening statement. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. I had a 

commitment at 3 o’clock to meet with members of the Pennsylvania 

Rural Electrification Society, and it was a very, very important 

meeting. They were endorsing my candidacy for reelection. 

[Laughter.] 

Senator SPECTER. You will pardon me if I sit down for a few moments. 

At the outset I compliment the 10 freshmen Senators on a bipartisan basis for digging into this very important and very contentious issue, and I believe that coming to the Senate fresh, you observe as new Senators, only a short time after being citizens without being a Senator, still a citizen after being a Senator, but very 

close to the non–Senator ranks, what this appears to the American 

people, to see the bickering which has been going on. At the outset 

I attribute that bickering to both parties. When the Republicans 

were in control of the White House in the last 2 years of President 

Reagan’s Administration, and all during President George Herbert 

Walker Bush’s Administration, the Democrats had the Senate, 

there was a problem. When President Clinton was in office, a Democrat, Republicans controlled the Senate from 1995 through 2000, 

there was a very, very similar problem. And the problem has been 

exacerbated. 

When this hearing was organized, it is interesting to note that 

there was not any disagreement between the Chairman, a Republican, and the ranking member, a Democrat, all the way until you 

got to the title of the hearing. It took that far into the process, 

point one, to have the disagreement. And this is a subject that I 

have studied for many, many years. It is a little different being on 

this side of the table than it is on the Committee, and I have been 

on the Committee during my entire tenure in the Senate. This is 

the first time I can recollect being at the witness table since I testified before Senator John McClellan. That even predates Senator 

Hatch. Not much predates Senator Hatch, would not have predated 

Senator Thurman. 

[Laughter.] 

Senator SPECTER. But I was here in 1966 testifying about the impact of Miranda on the Philadelphia District Attorney’s Office, so 

this is a new experience for me to be on this side of the table. 

17

The problems have existed when the Republicans control the 

White House and the Democrats the Senate, and conversely when 

the Democrats control the White House and the Republicans control the Senate, and it has become exacerbated in recent years. 

During the period from 1995, when Republicans controlled the Senate, till 2000, there were many worthy judicial nominees who were 

not confirmed with long, long delays, and finally we did get some 

confirmations, and Senator Hatch and I voted for Judge Paez and 

Judge Berzon. We never could come to agreement on Bill Landley, 

who was Assistant Attorney General in the Civil Rights Division, 

but that was a very contentious time. And when the Democrats 

took back over on the Senate after Senator Jeffords left the Republican Party, it was payback time, and the payback occurred, and it 

was exacerbated. When Republicans regained the Senate after the 

2002 elections, the table stakes were raised very, very considerably 

when we have had the introduction of the filibuster. This is unprecedented for the so-called inferior court, lesser than the Supreme 

Court of the United States, to have a filibuster. The only occasion 

where there had been a filibuster was, as we all know, with Justice 

Abe Fortas, and that was a bipartisan filibuster, and that was a 

filibuster which involved the issue of integrity. So this was very, 

very different. 

It is my hope that we can use the old Latin phrase to restore the 

status quo, antebellum, to restore what had been prior to the time 

the war started, and the war has been going on for a very long 

time, and it is time to go back to what the status quo was before 

the war started. 

Sometime ago I circulated what I called ‘‘the protocol.’’ This was 

in the days before the exacerbation with the filibuster, and the protocol articulated a proposal that so many days after the candidate 

was nominated, there would be a hearing in the Judiciary Committee, and so many days later there would be Committee action, 

and so many days later there would be floor action, all subject to 

delay for cause on a determination by the Chairman or the majority leader, subject to notification of the Ranking Member of the minority leader on the floor of the United States Senate. It was my 

proposal that if there was a strict party line vote, that that individual would go to the floor even though there was not a motion 

by a majority to send the nominee to the floor. 

There were precedents for that. When Judge Bork was defeated 

in Committee 9 to 5, he was sent to the floor. When Justice Thomas was tied in Committee and not enough votes, because it take a 

majority vote to go to the floor, Justice Thomas went to the floor. 

And there have been long complaints about matters being bottled 

up in the Judiciary Committee, going back significantly to civil 

rights issues, so that it seemed to me that if it was strict party 

line, that the matter ought to go to the floor. 

Now we have the unprecedented situation with the filibuster. 

There is just no basis for that in the more than 200-year history 

of our republic, and I would suggest to my colleagues and everybody on the Judiciary Committee who is steeped in the lore of the 

law and steeped in the activities of judicial nomination and selection, that when we deviate from existing principles, we do so at our 

peril. If it was good enough for the confirmation of judges for more 

18

than 200 years, what has occurred to warrant the change? There 

is no doubt that partisanship in the United States Senate today is 

at a very, very high pitch, and the bitterness is at a very, very high 

pitch. And that does not enable us to do our jobs in the interest 

of the public, and the bickering is applicable on pretty much an 

even division in my opinion between Democrats and Republicans. 

I put my votes where my mouth is, as voting for many, many of 

the Democratic nominees when Republicans controlled the Senate, 

and fighting to get Berzon and Paez and Bill Landley and others 

confirmed. 

The confirmation process of Justice Clarence Thomas was the 

toughest one, most divisive one which I have seen in my tenure in 

the Senate. There may have been others. When Louis Brandeis was 

confirmed, it was very contentious, but I think that the confirmation process of Justice Thomas was as contentious if not more so 

than any nomination, judicial and otherwise in the history of the 

country, but there was no filibuster, no filibuster when Justice 

Thomas was up in 1991, just 12 years ago, and there were all sorts 

of maneuvers. There was a delay in the vote. There was an unwillingness of Professor Hill to come forward, as disclosed in the hearings. She had been assured that if she made a complaint against 

Justice Thomas, then Judge Thomas, that she would not have to 

testify. She ultimately did testify and those were very, very difficult hearings, very, very contentious floor debate, but there was 

no filibuster. And I think had there even been an occasion where 

a filibuster would have been expected that would have been it. 

So it is a little hard to see why suddenly we have come to a filibuster on Miguel Estrada, superbly qualified, Phi Beta Kappa, 

magna cum laude at Columbia, magna cum laude at Harvard Law 

Review, 15 cases in the Supreme Court, comes from a foreign country, barely knows English, from Honduras as a teenager, great 

American dream. 

The situation with Justice Priscilla Owen of the Texas State Supreme court, good credentials, a record you can quarrel with on 

issues of judiciary bypass, but in a different era there would never 

have been a serious challenge to her nomination. 

For more than 200 years the latitude has been accorded to Presidents on advice and consent, but suddenly the Constitution has 

been turned into advice and dissent. There are in the wings some 

nuclear proposals which may be reaching the floor, and I am not 

going to discuss them. They will await another day. But one line 

of exacerbation inspires another. 

As you said, Mr. Chairman, and again I compliment on your initiation of these hearings, it is time we made a new start, try to 

turn back the clock, status quo antebellum, going back to 1987, and 

trying to find a way, and it is my hope that perhaps the time will 

be ripe in the fall of 2004, when we are on the brink of a presidential election, at that time there may be some uncertainty as to 

who the next President will be, whose ox will be gored or the shoe 

will be on the other foot, so that we will have a system which will 

handle these matters with an established protocol, so many days 

regardless of what party controls the White House where the opposite party controls the Senate. 

19

Thank you for conducting these hearings, and thank you for giving me an opportunity to testify. 

Chairman CORNYN. Thank you Senator Specter for your contribution and your presence today and trying to help the Senate find a 

way out of this quagmire. 

I know that Senator Zell Miller, who was going to originally be 

a member of the panel, wanted to be here to personally address the 

Subcommittee, although he informed me earlier today that with 

great regret, he cannot be here in person, but for personal reasons, 

must remain in his home State of Georgia, but he has graciously 

provided the Subcommittee with a written version of the remarks 

he wanted to give today, and I would like to have his full statement become part of the record, and without objection, it will be. 

[The prepared statement of Senator Miller appears as a submission for the record.] 

Chairman CORNYN. I would like to just give a simple overview 

of what his proposal is and what I believe he would say, in general 

terms, if he were able to be with us here today in person. 

Senator Miller’s proposal, it seems to me, strikes a balance and 

reconciles the tension between two principles at stake in today’s 

discussion. 

First, the Senate’s tradition of ensuring adequate debate and, 

second, the Constitution’s Doctrine of Majority Rule for confirming 

judges. Senator Miller’s Senate Resolution 85 would do this, first, 

by providing that the first cloture vote would remain at 60 votes, 

and then by providing that each subsequent cloture vote would require incrementally fewer votes in a series steps until we reached 

a rule for ending debate by 51 votes; in other words, from 60 votes 

to 57 votes, to 54 votes, and then 51 votes for cloture. 

I mentioned Senator Miller’s proposal, along with Senator Specter’s and Senator Schumer’s proposal, in an article that I published 

this morning in opinionjournal.com, which has already been made 

part of the record. 

Senator Miller, himself, published an article describing his proposal in the Wall Street Journal just 2 months ago, and without 

objection that editorial will also become a part of the record. 

We certainly cherish debate in the United States Senate because 

we want to ensure that every Senator has a chance to speak and 

that every argument that can be made in good faith will be made 

and is tested in the Senate and before the American people. But 

after a while, after the debate has run its full course, after everything has been said and everyone has said it, we must then respect 

the basic fundamental constitutional democratic principle of majority rule. 

Senator Miller, by the way, is the first to state that his proposal 

did not originate with him. His proposal is actually the same one 

introduced by Senators Tom Harkin and Joe Lieberman. Senators 

Harkin and Lieberman introduced the same proposal just as the 

Democrats were returning to minority status following the November 1994 elections. 

As Senator Harkin explained his proposal on the Senate floor 

back in 1995, ‘‘the minority would have the opportunity to debate, 

focus public attention on a bill and communicate their case to the 

20

public. In the end, though, the majority could bring the measure 

to a final vote, as it generally should in a democracy.’’ 

As I previously pointed out, Senators Harkin and Lieberman 

have both stated their opinion that filibusters, when abused to distort the constitutional majority of the Doctrine of Majority Rule are 

unconstitutional. And so I will let the rest of Senator Miller’s written statement, as well as his article, speak for itself and will not 

go any further on that point. 

I regret that he is not able to be here today in person, but at 

least his views, I know, will be made part of the record. 

Senator FEINGOLD. Mr. Chairman? 

Chairman CORNYN. Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, I would like to ask to be put 

in the record a memo prepared at my request by the Congressional 

Research Service on the subject of filibusters conducted on treaties 

and other matters that require a two-thirds vote in the Senate. 

This memo shows that the filibuster has been used on numerous 

occasions to require extended debate on treaties, which the Constitution specifically provides must be approved by a two-thirds 

vote. Prior to 1917, of course, as Senator Kennedy pointed out, the 

Senate had no cloture rule. Thus, a single Senator could theoretically block a treaty through a filibuster. According to the theory advanced here today by a number of witnesses, that action would 

have been unconstitutional. After all, the Constitution is explicit 

that only a two-thirds vote is required to approve. Yet by extending 

debate, a single Senator essentially converted that requirement 

into a requirement of unanimity. Many of these treaties, of course, 

were ultimately approved. It seems to me the argument applies 

equally to any delay in approval caused by a filibuster. 

Of course, I disagree with the arguments made here today on the 

constitutionality of the filibuster, and I think the history documented in the CRS report shows that the Senate, over a very long 

period of its history, disagreed as well. 

Chairman CORNYN. Without objection, that document will be 

made part of the record. 

Now, let us move on to the second panel. I would like to invite 

the members of the second panel, a panel of constitutional and 

legal experts, to come to the table. While we are waiting for them 

to take their seat, I would like to take a moment to observe that 

several other individuals have asked to testify before the Subcommittee on this important subject. Not surprisingly, the current 

crisis in the judicial confirmation process has attracted significant 

public attention, and I would have liked to have given everyone a 

chance to testify in person here today, but of course time does not 

permit that. 

But many individuals and organizations have asked to have their 

written statements admitted as part of the record, and without objection, the following documents will be admitted as part of the 

record or be included as part of the record: 

First, a letter from Professor Linda Eades at the Southern Methodist University, Dedman School of Law, in Dallas, Texas; 

Second, a report of the American Center for Law and Justice, authored chiefly by that group’s chief counsel, Jay Sekulow; 

21

Third, a legal analysis by the Concerned Women by America and 

other groups. 

And of course, without objection, we will leave the record open 

until 5 p.m. next Tuesday, May the 13th, in case others would like 

to submit their statements for the record. This is an important 

issue and an important debate, and I do not want to exclude anyone from the opportunity to participate in these discussions. 

We are pleased to have before the Committee six distinguished 

panelists to speak on these issues. 

First, Dr. John Eastman, who is professor of law at the Chapman 

University School of Law, specializing in constitutional law and 

legal history. He is also the director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the 

Claremont Institute for the Study of Statesmanship and Political 

Philosophy. And I am pleased to say he has been called to testify 

before Congress a number of times by members on both sides of the 

aisle. 

Mr. Bruce Fein is a senior partner in Fein & Fein, a Washington, 

D.C., law firm, specializing in appellate and constitutional law. He 

is a nationally acclaimed expert on constitutional law, who previously served as associate deputy attorney general and general 

counsel of the FCC. Like Professor Eastman, Mr. Fein has been 

called to testify before Congress on numerous occasions and by 

members on both sides of the aisle, including, I believe, the ranking 

minority member of this Subcommittee. 

Professor Michael Gerhardt is the Hanson Professor of Law at 

William & Mary Marshall–Wythe School of Law, in Williamsburg, 

Virginia. In 2000, he authored a book of direct relevance to today’s 

hearing, entitled ‘‘The Federal Appointments Process.’’ He previously served as special consultant to the White House Counsel’s 

Office for the Confirmation of Justice Stephen Breyer. Professor 

Gerhardt has the distinction of being the only joint witness called 

to testify by members on both sides of the aisle before the House 

Judiciary Committee in its special hearing on the impeachment 

process in 1998. 

Ms. Marcia Greenberger is founder and co-president of the National Women’s Law Center here in Washington, D.C. She is a nationally recognized expert on sex discrimination law and is no 

stranger to the politics of the judicial confirmation process. 

A graduate of the university of Pennsylvania, Ms. Greenberger 

has been recognized by ‘‘Washingtonian Magazine’’ as one of the 

most powerful women in Washington. 

Ms. Greenberger, we are delighted to have you hear as well. 

Professor Steven Calabresi is professor of law at Northwestern 

University School of Law. He served as a Supreme Court law clerk 

and as an attorney and speechwriter in the White House and Justice Department during the Reagan and Bush administrations. He 

has written extensively on the numerous constitutional legal subjects dealing with the presidency and with separation of powers 

and has been published in the ‘‘Yale Law Journal,’’ the ‘‘Stanford 

Law Review,’’ and many other prestigious law journals. 

Finally, Dean Doug Kmiec is dean of the Catholic University 

Law School. I first met Dean Kmiec when he was at Pepperdine 

School of Law, and it is good to see you again. 

22

He is the co-author of one of the Nation’s leading constitutional 

law case books and numerous articles on constitutional issues and 

the Federal courts. He has previously served as assistant attorney 

general for the Office of Legal Counsel at the Department of Justice, the office charged with providing constitutional legal advice to 

the President, the Attorney General, and the Executive Branch. 

I want to welcome the entire panel here today, and I know it is 

almost a criminally short period of time, but so we can cover each 

of your statements to start with, and then provide an adequate opportunity for the Subcommittee to ask questions. 

We will begin with opening statements of a mere 5 minutes before moving on to question-and-answer rounds. 

Professor Eastman, we can start with you, please. 

STATEMENT OF JOHN EASTMAN, PROFESSOR OF LAW, CHAPMAN UNIVERSITY SCHOOL OF LAW, DIRECTOR, CENTER FOR 

CONSTITUTIONAL JURISPRUDENCE, ORANGE, CALIFORNIA 

Mr. EASTMAN. Thank you, Chairman Cornyn, and other members 

of the Subcommittee. 

We are here today, as we all know, to address a procedural tactic—the filibuster—that dates back at least to Senator John C. Calhoun’s efforts to protect slavery in the old South and that, until 

now, was used most extensively by Southern Democrats to block 

civil rights legislation in the 1960’s. 

In its modern embodiment, the tactic has been termed the 

‘‘stealth filibuster.’’ Unlike the famous scene from ‘‘Mr. Smith Goes 

to Washington,’’ where Jimmy Stewart passionately defends his position until collapsing on the floor, the modern practitioners of this 

brigand art of the filibuster have been able to ply their craft largely 

outside the public eye, and hence without the political accountability that is the hallmark of representative Government. 

I am thus very pleased to be here today to help you and this 

Committee in your efforts to ‘‘ping’’ this stealth filibuster and make 

it not only less stealthy, but perhaps restore to it some nobility of 

its original purpose. 

Let me first note that I am not opposed to the filibuster per se, 

either as a matter of policy or constitutional law. I think the Senate, within certain structural limits, is authorized to enact procedural mechanisms such as the filibuster, pursuant to its power to 

adopt rules for its own proceedings. 

I think that by encouraging extensive debate, the filibuster has, 

in no small measure, contributed to this body’s reputation as history’s greatest deliberative body. But I think it extremely important to distinguish between the use of the filibuster to enhance debate and the abuse of the filibuster to thwart the will of the people, 

as expressed through the majority of their elected representatives. 

The use of the filibuster for dilatory purposes is particularly 

troubling in the context of the judicial confirmation process, for is 

thwarts not just the majority in the Senate and the people that 

elected that majority, as any filibuster of ordinary legislation does, 

but it intrudes upon the President’s power to nominate judges and 

ultimately threatens the independence of the judiciary itself. 

Before I elaborate on each of these points, let me offer a bit by 

way of a family apology of sorts. One of the more notorious of the 

23

Senate’s famed practitioners of the filibuster was my great uncle—

it is actually my great-great uncle—Robert LaFollette, a candidate 

for President in 1924 and a long-time leader of the progressive 

movement whose members took great pride in thinking that they 

could provide greater expertise in the art of Government than anything that could be produced by mere majority rule. Because this 

ideology of the Progressive Party was so contrary to the principle 

of consent of the governed articulated in the Declaration of Independence, I have always considered Senator LaFollette somewhat 

of a black sheep in our family. But I can at least take some family 

pride in the fact that one of his filibusters— 

Senator FEINGOLD. Mr. Chairman, this direct attempt to incite 

the Senator from Wisconsin will not be tolerated. I invite you to 

come to Wisconsin and make those remarks about Robert M. 

LaFollette, perhaps outside of a Packer game. 

Chairman CORNYN. Senator Feingold, we appreciate your self-restraint. 

[Laughter.] 

Mr. EASTMAN. I can at least take some family pride in the fact 

that one of his filibusters, the temporarily successful effort to block 

Woodrow Wilson’s widely popular proposal to arm merchant ships 

against German U-boats in World War I led the Senate to restrict 

the filibuster power by first providing for cloture. 

Unfortunately, I believe that those efforts did not go far enough. 

More needs to be done to ensure that the debate-enhancing aspect 

of the filibuster cannot be misused to give to a minority of this 

body an effective veto over the majority. 

With that end in mind, I want to quickly make four points. 

First, it is important to realize that the use of the filibuster in 

the judicial confirmation context raises structural constitutional 

concerns not present in the filibuster of ordinary legislation. 

Second, these constitutional concerns are so significant that this 

body should consider modifying Senate Rule XXII so as to preclude 

the use of the filibuster against judicial nominees or at least ensure 

that ultimately the filibuster cannot give to the minority of this 

body a veto over the majority. 

Third, any attempt to filibuster a proposal to change the rules 

itself would be unconstitutional, in my view. 

And, finally, I believe that if this body does not act to fix this 

problem to abolish what has essentially become a supermajority requirement for confirming judicial nominees, it could be forced to do 

so as a result of litigation initiated by a pending nominee or even 

by a member of this body whose constitutional vote has been diluted by the new use of the filibuster. 

As we all know, the President nominates, and by and with the 

advice and consent of the Senate, appoints judges of the Supreme 

Court and of the inferior courts. Contrary to the testimony of Senator Schumer earlier and the comments by Senator Kennedy, this 

was not designed to provide a co-equal role in the confirmation 

process to this body. The primary role, as Joseph Story himself acknowledged in his Constitutional Treatise, was given to the President, with a limited check in this body to make sure that the President did not abuse that power. 

24

Ultimately, it becomes clear that one of the few ways that we 

have to control the unelected judiciary, which was designed specifically to be countermajoritarian is, over time, through the ability of 

the President, elected by the citizenry of this country, to appoint 

judges who agree with the political views of the country. 

There are two principal checks on the judiciary. One is the power 

of impeachment for judges that fail to act in good behavior. That 

has not been an effective check since Samuel Chase was impeached 

in the presidency of Thomas Jefferson. But the other check, the 

only viable check, is that, over time, the electorate, by choosing 

Presidents, can have an impact on the outlook of the judiciary. To 

assign to this body a role that would guarantee that that cannot 

happen, even after the President has been elected and a majority 

in this body has expressed their willingness to confirm his nominees, is in a sense to thwart, not just the majority of this body, but 

the majority of the people in the Nation as a whole. 

Let me turn to a couple of options that we might have very 

quickly. 

Chairman CORNYN. I am sorry to interrupt you, but, unfortunately, we need to hold the opening statements to 5 minutes, and 

hopefully we can address some of those on questions, and certainly 

your complete statement will be made part of the record. 

I apologize for the short amount of time allotted. 

[The prepared statement of Mr. Eastman appears as a submission for the record.] 

Chairman CORNYN. Mr. Fein? 

STATEMENT OF BRUCE FEIN, ESQ., FEIN & FEIN, 

WASHINGTON, D.C. 

Mr. FEIN. Thank you, Mr. Chairman, and members of the subcommittee. I think the comments that you have made and those of 

the previous witnesses were very enlightening and focused attention on what the critical problem is and perhaps differing conceptions of what the role of the Senate is in confirming Federal judges. 

I do not think we ought to delude ourselves that what we are 

witnessing today is not a dress rehearsal for the first nominations 

by President Bush for vacancies of the Supreme Court that are 

likely to unfold in June or July, and our focus and concern ought 

then to be equally then raised because this is not simply a dispute 

over Circuit Court confirmations. 

I think that the issue of whether or not there have been filibusters about judges in the past that are equivalent to what is happening with regard to Miguel Estrada and Priscilla Owen are 

somewhat beside the point. It is clear that simply longevity of a 

practice is not sufficient to save it from unconstitutionality, and I 

will refer to five prominent cases which I believe demonstrate that 

in spades. 

You may recall the U.S. Supreme Court in INS v. Chadha held 

unconstitutional the legislative veto that had flourished in Congress over many, many decades, over 60 years. The United States 

Supreme Court in United States v. Meyers eliminated the power of 

the Senate to require its consent for the President to remove an executive officer. That was the practice that emerged in the Tenure 

of Office Act in 1868, when the radical reconstruction Congress was 

25

opposed to then–President Andrew Johnson; again, a practice of 

well over 80 years that was held unconstitutional. 

Erie Railroad v. Tompkins, a case that we all study in law 

school, where Justice Brandeis overturned some 80 years of Federal common law as being an unconstitutional usurpation of power. 

The Congress of the United States, for over a century, thought 

itself empowered to exclude persons properly elected beyond disqualifying from age, residency and citizenship. In Powell v. McCormack, the United States Supreme Court held that unconstitutional. 

A political patronage that was inherited from the outset of our 

Constitution was held unconstitutional in Elrod v. Burns. So simply because something might have been done in the past, certainly 

does not require that it be continued in the future on the theory 

that if it was unconstitutional then, it in a sense gets grandfathered past Supreme Court review and acquires constitutionality 

through age. 

I would also like to address one of the issues that was raised, I 

believe, by one of the previous witnesses about moderation being 

so critical here. And also the idea that a critical element of the reason for Senate review of presidential nominations in the judiciary 

was to ensure moderation in the bench. 

Well, moderation is in the eye of the beholder, and I think it 

might be useful to examine those who opposed Justice Louis Brandeis when he was nominated in 1916. He was thought to be radical. 

That included the then-president of the American Bar Association, 

Elihu Root; former President William Howard Taft; former Attorney General George Wickersham; former NAACP head, Moorfield 

Story; the head of Harvard University, Lawrence Lowell; the Wall 

Street Journal, the Nation, and the New York Times all said Louis 

Brandeis was a radical. 

Now, as we all know, Brandeis has authored jurisprudence that 

still thrives today. Perhaps a third of major First Amendment law, 

right of privacy law, and Fourth Amendment law is from the pen 

of Louis Brandeis, and he was thought, I think under the standard 

of moderation that was expounded earlier, to be too radical and 

kept off the bench. 

I think that it is also unwise to search for intellectual tidiness 

on filibustering rules. I think its application to judges is different 

than its application to legislation or to treaties. We have to think 

about each case and ask the purpose of the Senate role or the Senate requirement of majority or supermajority and ask whether it 

would be undermined if you had a filibuster rule. It may be different with judges, as opposed to legislation. 

I think if you look at the Federalist Papers and the Constitutional Convention of the Founding Fathers’ reason for entrusting a 

confirmation role to the Senate, the filibuster for purposes of 

screening for ideology is improper. 

Hamilton explained it was to screen for competence, cronyism 

and corruption. That was the reason. And, in fact, he goes on in 

Federalist 76 to explain precisely why, as Senator Kennedy pointed 

out, the Constitutional Convention shifted the appointment power 

from the Senate to the President. Collectivities have a tendency to 

search for the lowest common denominator because, in some sense, 

26

there is an irresponsibility that goes with anonymity and voting in 

a collective. 

The President was given power to appoint because he was accountable; he had an incentive to search for the best and the 

brightest and strongest. The Senate could deny confirmation if 

there was some kind of taint in the process. But otherwise it was 

thought, in the long run, to produce the most enlightened and 

strong judiciary, entrusted with checking the legislature and the 

executive abuses, that the President’s nominee should prevail. 

I also think that in this case, with regard to Miguel Estrada and 

Priscilla Owen, it is exceptionally worrisome that we have an effort 

by a minority of the Senate to block confirmation. I know that one 

of the Senators who had testified previously held a hearing all day 

on how he thought it was outrageous that the Supreme Court and 

other judges were saying Congress was exceeding its power under 

the Commerce Clause in Section 5 of the Fourteenth Amendment, 

and he thought Congress should be totally unchecked on those 

bases, and there should not be any judicial review. 

So I think, in this case, the purpose of the filibuster is, in fact, 

to undermine a central component of separation of powers, the 

jewel in the crown, by having a judiciary to check an excess of Congress. 

Thank you, Mr. Senator. 

Chairman CORNYN. Thank you, Mr. Fein. 

Professor Gerhardt? 

STATEMENT OF MICHAEL GERHARDT, HANSON PROFESSOR 

OF LAW, WILLIAM & MARY LAW SCHOOL, WILLIAMSBURG, 

VIRGINIA 

Mr. GERHARDT. Thank you, Chairman Cornyn, and thank you, 

other members of the Subcommittee. It is a great honor to be here. 

There is nothing I consider more important for me to be than to 

be of service to this institution and to follow my fellow panelist, 

John Eastman’s, suggestion. I want to just note, personally, that I 

was born in Wisconsin, my mother lives in Texas, and I have visited Utah several times. 

[Laughter.] 

Mr. GERHARDT. I had the privilege of meeting Senator Hatch for 

the first time at the Utah Bar Convention. So I have covered my 

bases. 

Chairman CORNYN. Professor Gerhardt, will you check your button there to make sure it is turned on. 

Mr. GERHARDT. And that is pretty much all I had to say, Senator. 

[Laughter.] 

Mr. GERHARDT. With all due respect, I would not want to review 

here, in my brief appearance right now, the ample support for the 

constitutionality of the filibuster. I have covered that in my statement and would be happy to answer questions on it later. 

I want to focus my remarks, briefly, on the major arguments 

against the constitutionality of the filibuster. One of the most common I think we will hear today, and that is the argument that the 

filibuster violates majority rule in the Senate. This argument is 

predicated on reading several provisions of the Constitution as establishing majority rule as a fixed principle to govern Senate votVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
27

ing, with the obvious exceptions of the specific instances in which 

the Constitution imposes supermajority voting requirements. 

Yet, a sensible reading of these provisions does not establish majority rule within the Senate as a fixed principle in all but a few 

instances. At most, these provisions establish majority rule as the 

default rule in the absence of any other procedure. 

The filibuster leaves this default rule intact. Rule XXII does not 

require 60 votes to adopt a law, it requires 60 votes to end debate. 

Passing a bill or confirming a nomination still requires a simple 

majority. Moreover, the clause that a majority is a quorum creates 

the basic rule for when each chamber may do its business. That 

same clause, by the way, shows how the framers could well provide 

for a majority or impose a majority, a legislative majority, when 

they wanted to, but they failed to do it for the internal procedures 

of the Senate. 

Some opponents of the filibuster insist, nevertheless, the majority rule applies with respect to not only legislation, but also nominations. The argument in part is that the Appointments Clause entitles the Senate to give its advice and consent to presidential 

nominations and that the filibuster bars a majority of the Senate 

from exercising this prerogative. 

The argument is that a majority of the Senate is constitutionally 

protected in exercising its discretion whether to hold a final vote 

or not. If it is disposed to hold one, no minority can stand in its 

way. I think there are problems with this argument. 

The first difficulty is that it is predicated on a flawed reading of 

the Appointments Clause. The Appointments Clause sets forth the 

necessary conditions for someone to be appointed as an Article III 

judge. One of these conditions is nomination by the President, another is confirmation by the Senate. Confirmation is achieved by a 

majority vote of the Senate. Thus, the clause sets forth the prerequisites for a lawful presidential appointment. It says nothing 

about the specific procedures applicable in confirmation proceedings or about how someone may be denied confirmation. 

Second, the suggested construction of the Appointments Clause 

would lead to absurd results. For one thing, I think, it would eliminate the committee, particularly the Senate Judiciary Committee, 

as a gatekeeper for nominations. Moreover, the majority leader presumably would be required to forward to the Senate floor each 

nomination that the President makes, regardless of what happened 

in the Committee. 

In addition, this reading of the Appointments Clause would 

render unconstitutional temporary holds which have been used routinely to delay final consideration of legislation and nominations. 

Temporary holds near the end of legislation can often be fatal; 

delay a nomination just long enough near the end of a legislative 

session, time runs out for the Senate to act and the nomination 

lapses. Such lays would be intolerable on this reading of the Appointments Clause. 

Reading the Appointments Clause as entitling, or empowering, a 

majority of the Senate to render final votes on presidential nominations would mean there were constitutional violations every time 

nominees failed to receive final votes on their nominations. 

28

Let me note that there is only one Appointments Clause, and 

therefore what we are talking about is majority rule would apply 

with respect to every nomination, not just every judicial nomination, but every nomination, and I do not hear that argument being 

urged today. 

The constitutional violation presumably arises when a majority 

is willing, but unable, for some reason, to confirm a nominee, but 

it is unclear what procedures the Constitution requires to determine a majority’s willingness to vote prior to the final vote. 

It would be absurd to think that the Appointments Clause requires the majority to vote twice. Moreover, a reading of the Appointments Clause as entitling a majority vote on a nomination 

when it is so disposed, leaves unclear whether Senators could 

change their minds once they have initially signalled their willingness to confirm someone. There have certainly been instances in 

the past when Senators have indicated their inclination to vote one 

way, but voted differently in the final vote. 

I would just point out the numerous times in which this rule 

would have been violated not just during the Clinton administration, but before that. I could not begin to count how many instances in which it might have been violated, and so it is a good 

time for me to say my time has run out. 

[The prepared statement of Mr. Gerhardt appears as a submission for the record.] 

Chairman CORNYN. Thank you very much, Professor Gerhardt. 

Ms. Greenberger, we would be pleased to hear from you now. 

STATEMENT OF MARCIA GREENBERGER, CO–PRESIDENT, 

NATIONAL WOMEN’S LAW CENTER, WASHINGTON, D.C. 

Ms. GREENBERGER. Thank you, Senator Cornyn. 

I am Marcia Greenberger, co-president of the National Women’s 

Law Center, which for 30 years has been working on the core legal 

rights that affect women and their families in this country. With 

me is Center Vice President Judith Appelbaum. We appreciate very 

much your invitation to appear here today, and like the other panelists today, recognize the extraordinary importance of the hearing 

on the topic before us. 

The Federal courts play an extraordinarily important, indeed, a 

critical role in giving life and meaning to the rights and principles 

enshrined in the Constitution and the laws enacted by Congress, 

and because of the profound impact on the lives of all Americans, 

it is very important to look at the kinds of problems that are being 

alleged exist with respect to the judicial confirmation and appointments process and the solutions. 

Senator Cornyn, you have described the judicial appointments 

process as broken and needing to be fixed. With all due respect, 

while I agree there is a problem, I differ on what it is and what 

should be done about it. 

The problem is not that the Senate is giving careful scrutiny to 

judicial nominations and that Senators are willing to engage in a 

filibuster pursuant to the Senate rules to stop nominations to 

which they have especially strong objections, including objections 

based on the nominee’s substantive views on important legal 

issues; these Senators are exercising the advise and consent reVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
29

sponsibility the Constitution gives to the Senate and is what the 

Senate has done since the beginning of the Republic, including with 

respect to the first nominee to the Supreme Court in the very beginning days of the Republic in looking at judicial philosophy. 

We have heard from some of my panelists a denigration of the 

role of the Senate in this advise and consent function. With the 

limited time now, I will not go into that, but suffice it to say that 

it was not that the shift of the appointment power went to the 

President, as I think one of my panelists just said, it was the shift 

of the nomination power to the President, the advise and consent 

role was retained by the Senate and of course every Senator is 

elected by constituencies, just as the President is, and that was reflected in the constitutional balance of authority and power in this 

important nomination process. 

The problem as we see it rather is that the administration is 

sending to the Senate nominees who provoke controversy and 

delay. Instead of consulting with Senators and coming up with consensus candidates, respecting the advise function of the Senate’s 

advise and consent constitutional responsibility, what we have seen 

is individuals with extreme views who are affecting critical legal 

principles, and in the Estrada case, depriving the Senate of sufficient information about the nominee’s views on these issues. 

This approach inevitably produces vehement opposition, polarization, and, yes, in these two cases, out of the 121 nominees who 

have been confirmed to date, filibusters. Hardly a crisis within this 

context, it is fair to say, as has been pointed out with the current 

vacancy rate just now at 47, the lowest in 13 years. We do not like 

much of what is happening with this process, but it is hard to say 

that there has been a crisis. In fact, there has been, thanks to what 

has happened under Senator Leahy’s watch and now Senator 

Hatch, a movement of many nominees through the confirmation 

process. 

I do, because the names of Priscilla Owen and Miguel Estrada 

have come up, want to say, briefly, in the case of Priscilla Owen, 

nominated to the Fifth Circuit, her judicial record has shown that, 

as a Supreme Court judge on the Texas Supreme Court—a court, 

Senator Cornyn, I know you are very familiar with—-her then fellow judge, Alberto Gonzales, wrote that her position in one case 

constituted an unconscionable act of judicial activism because it 

construed a State law in a way that would create hurdles for the 

right to choose that were not in the words of the statute. Strong 

language, and from the man who is now White House counsel. 

In the case of Miguel Estrada, there have been concerns about 

the rules of the Judiciary Committee not being followed by key answers to questions not being given, by key pieces of information 

that are necessary for the Senate to discharge its advise and consent responsibility not being provided. 

There are other very controversial and troublesome nominees 

coming up before this Judiciary Committee. I do not have time now 

to go through some of the deep concerns with Carolyn Kuhl, who 

during her tenure in the Government urged the Supreme Court to 

overturn Roe v. Wade and to allow Bob Jones University to retain 

tax-exempt status despite its policy of racial discrimination. 

30

I will say, also, with Charles Pickering, nominated to the Fifth 

Circuit, he called for a constitutional amendment banning abortion 

and as a Federal judge tried to pressure the Justice Department 

to drop a charge against a convicted cross-burner, to avoid having 

the defendant serve the mandatory minimum sentence. 

These are highlights of records that have many more details that 

are troublesome. 

J. Leon Holmes, just reported out of the Judiciary Committee in 

a highly unusual procedural manner, nominated to a district court 

seat, compared the pro-choice movement to Nazi Germany, argued 

that wives must subordinate themselves to husbands, said that 

there need not be a right of rape victims to secure an abortion because basically they do not get pregnant. 

These are extremely problematic nominees, and it is exactly the 

role of the Senate to give not only its advice, but when they are 

actually nominated to withhold its consent when they have extreme 

records that are so problematic. 

I also want to say that there are a nominees who have ultimately 

been confirmed and not been filibustered, even though the ‘‘no’’ 

votes went over that 41-vote threshold. Jeffrey Sutton was confirmed with 41 ‘‘nay’’ votes; Judge Tymkovich, now in the Tenth 

Circuit, 41 ‘‘nay’’ votes; Judge Shedd, Fourth Circuit, 44 ‘‘nay’’ 

votes; D. Brooke Smith, Third Circuit, had 35 ‘‘nay’’ votes. 

I bring that to this Subcommittee’s attention because these kinds 

of nominees are divisive, they are problematic, they raise real 

issues and dangers with respect to real people’s constitutional 

rights, but they raise an even bigger problem and challenge, and 

that is whether or not the American public, when it goes before a 

judge, will be able to have the confidence that that judge is going 

to be open-minded, and that is what we are really talking about 

when we are talking about respecting the advise role, as well as 

the consent role, of the Senate. 

We should not be fostering and thinking about solutions that 

ram nominees through with artificial deadlines that do not allow 

for serious study and review of their records, that change filibuster 

rules that have been in place for decades— 

Chairman CORNYN. Ms. Greenberger, if you would please wrap 

up your comments. We will make any statements you have a complete part of the record, but we have gone over the allotted time. 

Ms. GREENBERGER. I appreciate that. Thank you. 

And so I would, in wrapping up, say that rather than continue 

along the line of radical changes, of rules that have been in place 

for decades and even centuries, rather than changing the rules of 

the game as they have worked to protect the public over time, what 

is really the most important change would be to look for comity, 

to look for the kinds of nominees that can get the kind of strong 

backing that will give the public the confidence that there is a judiciary that is open-minded and ready to give fair justice to whoever 

walks in the door. Thank you. 

[The prepared statement of Ms. Greenberger appears as a submission for the record.] 

Chairman CORNYN. Thank you. 

Dean Kmiec? 

31

STATEMENT OF DOUGLAS KMIEC, DEAN OF THE COLUMBUS 

SCHOOL OF LAW, THE CATHOLIC UNIVERSITY OF AMERICA, 

WASHINGTON, D.C. 

Mr. KMIEC. Senator, thank you for allowing me to appear before 

this body. This is an important hearing. I liked the way you described it at the beginning, a ‘‘fresh start.’’ I like the fact that it 

originated as well with a group of bipartisan freshmen Senators 

who come to this body and recognize that for a good long time we 

have been paralyzed over this subject. 

To try and facilitate a fresh start, let me suggest that it is useful, 

as we consider this discussion, to separate out four things. All four 

have been present here in the discussion already this afternoon. 

First, is the issue of whether or not it is appropriate to consider 

ideology in the appointment of an individual to the Federal bench. 

This has been raised by Senator Schumer. It has been raised most 

recently by my co-panelist here, Marcia Greenberger. I do not believe that is an issue that is going to be particularly helpful this 

afternoon in getting us to the fresh start. 

I think, as a constitutional matter, the President has complete 

authority to consider ideology if he wishes. As a constitutional matter, I believe the Senate has no textual restraint to preclude it from 

doing so. Whether it is prudent to do so after someone has been 

proven to be a person of integrity and competence I think is another question, but I think that issue is good to be put aside. 

The second issue that I think will not help get us to the fresh 

start is whether or not we debate the particular qualities this afternoon of particular nominees. There are some excellent nominees, 

some of which have been, in my judgment, obstructed both in the 

Committee and now on the floor of the Senate. But other hearings 

have been held on that topic, and they need not be held this afternoon. 

A third issue, and one that is interwoven with this topic, is the 

issue of the filibuster and whether that is constitutionally appropriate and specifically whether it is constitutionally appropriate to 

apply it to judicial nominations. 

Professor Gerhardt, in his testimony, addressed this question. He 

also addressed it in his scholarly work in his book on appointments 

that was published several years ago, and I would borrow from 

what he said in his book, more than what he said in his testimony 

this afternoon. Specifically, when you have a constitutional text 

that in seven specific places envisions a supermajority, to construct 

a supermajority outside the constitutional text in other places is, 

I think, a problematic practice and perhaps one that is fraught 

with constitutional questions that are worthy of this body. 

But it is really the fourth question that I think poses the most 

serious constitutional difficulty, and that is the constitutional entrenchment of supermajority rules, and the reason this is so serious 

is because it goes directly to the heart of whether or not you, Senator, who have been elected newly to this body, and your fellow 

freshmen Senators, who have the confidence of your constituencies, 

will, in fact, be given the opportunity to fully represent the people 

from the State of Texas and the other States where the new Senators are from. 

32

We currently have in play a process where carryover rules, rules 

that have not been adopted by the present Senate, are requiring a 

supermajority to, in effect, approve and confirm a judicial nominee. 

As you know, to close debate, it requires 60 votes; in order to 

amend the rules, it requires 67. 

These are carryover provisions that have not been adopted by 

this body and by virtue of that, they pose the most serious of constitutional questions because, as I quote, Senator, the Supreme 

Court has long held the following: 

‘‘Every legislature possess the same jurisdiction and power as its 

predecessors. The latter must have the same power of repeal and 

modification which the former had of enactment, neither more nor 

less.’’ 

I recommend that we focus our attention here this afternoon on 

how a fresh start can emerge, largely by having the Senate Rules 

Committee put in front of the full Senate for a majority of Senators 

to decide up or down, whether or not they want a Supermajority 

requirement for judicial nominees. I suspect they do not want that, 

and if that is the case, that will move us to a place where I think 

we can find agreement. 

Thank you, sir. 

[The prepared statement of Mr. Kmiec appears as a submission 

for the record.] 

Chairman CORNYN. Thank you, Dean. 

Professor Calabresi? 

STATEMENT OF STEVEN CALABRESI, PROFESSOR OF LAW, 

NORTHWESTERN UNIVERSITY LAW SCHOOL, CHICAGO, ILLINOIS 

Mr. CALABRESI. Thank you, Senator Cornyn. I very much appreciate the opportunity to appear before the Committee today. 

The people of the United States have just won a great victory in 

the war to bring democracy and majority rule to Iraq. Now, it is 

time to bring democracy and majority rule to the Senate’s confirmation process. A determined minority of Senators has announced a policy of filibustering indefinitely highly capable judicial 

nominees such as Miguel Estrada and Priscilla Owen. By doing 

this, the Senators are wrongly trying to change two centuries of 

American constitutional history by establishing a requirement that 

judicial nominees must receive a three-fifths vote of the Senate instead of a simple majority to win confirmation. 

The U.S. Constitution was written to establish majority rule. The 

historical reasons for this are clear. A major defect with the Constitution’s precursor, the Articles of Confederation, was that it required supermajorities for making many important decisions. The 

Framers deliberately set out to remedy this defect by empowering 

Congress to make most decisions by a simple majority. The only exceptions to this principle are in seven expressed situations where 

a two-thirds vote is required. 

Each House of Congress does have the power by majority vote to 

establish the rules of its proceedings, but there is no evidence this 

clause was originally meant to authorize filibusters. From 1789 to 

1806, the Senate’s rules allowed for cutting off debate by moving 

33

the previous question, a motion which required only a simple majority to pass. 

The filibuster of legislation did not originate until 1841, when it 

was employed by Senator John C. Calhoun to defend slavery in an 

extreme vision of minority rights. Calhoun was called a filibusterer—from a Dutch word for pirate or as we would say today, ‘‘terrorist,’’ because he was subverting majority rule. 

From 1841 to the present, the principal use of a filibuster has 

been to defend Jim Crow laws oppressing African Americans. 

Now, for the first time in 214 years, a minority of Senators are 

seeking to extend filibustering from legislation to the whole new 

area of judicial nominees, nominees who they know enjoy the support of a majority of the Senate. This is a bad idea for three reasons: 

First, such filibusters weaken the power of the President, who is 

one of only two officers of Government who is elected to represent 

all of the American people; 

Second, filibusters of judges undermine judicial independence, by 

giving a minority of Senators, led by special interest groups, a veto 

over who can become a judge. It is already hard enough for talented and capable individuals to be appointed judges without a minority of Senators imposing a litmus test; 

Third, the filibuster of legislation can at least be defended on the 

ground that Federal legislation ought to be considered with extraordinary care. In contrast, the confirmation of 1 out of 175 appellate judges is a much less momentous matter. This is especially 

so since a Judge Estrada or a Judge Owen would be only one judge 

on a panel of three, sitting on a court with 12 to 15 judges. 

The Senate can always change its rules by majority vote. To the 

extent that Senate Rule XXII purports to require a two-thirds majority for rules changes, Rule XXII is unconstitutional. It is an ancient principle of Anglo–American constitutional law that one legislature cannot bind a succeeding legislature. This principle goes 

back to the great William Blackstone, who said in his commentary, 

‘‘Acts of Parliament derogatory from the power of subsequent Parliaments bind not.’’ 

Three Vice Presidents of the United States, presiding over the 

Senate—Richard Nixon, Hubert Humphrey, and Nelson Rockefeller—have all ruled that the Senate rules can be changed by a 

simple majority of the Senate. 

Lloyd Cutler, White House counsel to Presidents Jim Carter and 

Bill Clinton, has written in the Washington Post that Senate Rule 

XX is plainly unconstitutional. 

The Senate can, and should, now amend Rule XX by simple majority vote to ban filibusters of judicial nominations. 

[The prepared statement of Mr. Calabresi appears as a submission for the record.] 

Chairman CORNYN. Thank you, Professor. 

We will now move to rounds of questions, with 10 minutes each, 

and I will go ahead and start. 

I guess, in listening to the fascinating remarks that each of the 

panel members have delivered so far on this particular panel, I just 

want to make sure I understand, in particular, Ms. Greenberger 

and Professor Gerhardt, would it be fair to characterize your testiVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
34

mony as ‘‘if it ain’t broke, don’t fix it’’? And, if not, tell me how you 

disagree. 

Ms. GREENBERGER. No, I do not say there are not problems that 

need to be addressed. I think there are things that need to be fixed. 

My solutions for fixing them, however, are not to change the rules 

with respect to the filibuster, are not, as I think it was Senator 

Specter had said, to interject nuclear suggestions that would lead 

to a further breakdown in comity; rather, my suggestions for the 

kinds of things that would enhance the judicial selection and appointments process would be those that would foster comity, those 

that would foster consensus candidates, those that would foster a 

give-and-take with respect to the administration and the Senate to 

respect both the role of the President, in nominating, and the constitutional role of the Senate, in giving advice and consent, so that 

there would be, at the end of the day, more confidence and better 

justice provided for the American public. 

So I do think there are changes that could be very useful and important to make, but not the sorts of changes that would undermine the filibuster that would change the Senate rules as they 

have been operating, that they have been operating to this day in 

many different forms, in many different contexts, and not to look 

for those kinds of extreme, as they were saying, not my words, but 

these nuclear suggestions that, to me, would exacerbate the problem. 

Chairman CORNYN. I will give you a chance to answer the question, Professor Gerhardt, in just a moment, but let me just ask a 

follow up to Ms. Greenberger. 

So are you saying we just need to do a better job of getting along 

with each other? 

Ms. GREENBERGER. No, I am saying that there are very concrete 

things that might be useful to foster the getting along with each 

other. 

Again, I want to go back to the Constitution, which talks about 

the Senate giving advice, as well as consent. If the President respected the advice function that the Constitution places with the 

Senate and seeks specific consultation with respect to potential 

nominees before they are made, that would be a very dramatic 

change, as I understand it, from the way things are operating right 

now and could foster the kind of comity that I mentioned. 

There was a newspaper article in the middle 1990’s that was 

interviewing a Clinton administration official who was responsible 

for picking judges, and this particular official was quoted as saying 

that the administration was not going to be sending up any nominees that could not get 60 votes. And I am sorry that Senator 

Hatch had to step out because he was quoted in that article as well 

as talking about the fact that he would be personally a force that 

the administration was going to have to contend with in sending 

any nominee. 

So there was a very close consultation process. The nominees 

that were sent up, were sent up with an expectation that there 

would be enough consensus around them to get 60 votes. 

Chairman CORNYN. Would that be more than a majority of the 

Senate? 

Ms. GREENBERGER. Sixty votes, yes. 

35

Chairman CORNYN. In other words, assuming— 

Ms. GREENBERGER. Yes, it would be also a—

Chairman CORNYN. If you will wait for my question. 

Ms. GREENBERGER. Sorry. 

Chairman CORNYN. Assuming that, as you say, the Constitution 

requires the President to seek advice from the Senate before he 

nominates judges or judicial nominees of his choosing, would that 

advice come from a simple majority or does it require a supermajority? 

Ms. GREENBERGER. Well, I want to say that since the Senate 

rules require that if there are Senators who choose to invoke filibuster, there can be a 60-vote requirement. Then that kind of advice needs to be taken into account. There are obviously a number 

of nominees, as I mentioned in my statement, who did not get that 

supermajority, but were confirmed, nonetheless, in the last week or 

more by the Senate. But that is not a healthy situation for nominee, after nominee, even if they squeak by and get confirmed, to 

be so controversial and to cause so much concern in the country 

among so many organizations. 

Organizations can be disparaged as special interests, and we do 

not have to care about them. These are not organizations that are 

out trying to find a way to make money. They are trying to protect 

the most basic and fundamental rights of organizations. I do not 

view representing women and families as a special interest to be 

disparaged. 

When people are concerned and scared about the future of their 

fundamental rights, whether or not we are talking about a supermajority, there ought to be that advise function that respects the 

kinds of consensus candidates that gives the American public confidence in the judiciary, and we have not seen that advise function, 

and so I would say, and there a number of specific suggestions I 

could make, if, for example, the specific nominees were—before 

they were actually made were run by the Senators in their home 

States, were run by the Senators in the Senate Judiciary Committee, that would be a very dramatic change in what is going on 

right now, and I think it would make an enormous difference. 

Chairman CORNYN. Would you give them a veto, the home Senator a veto on the entire Senate— 

Ms. GREENBERGER. No, then we are getting into the ‘‘blue slip’’ 

situation, of course, that is another process that has not been discussed very much in this context, in this hearing, but the Senate, 

in many ways, which has been pointed out, operates in a deliberative fashion that gives much credence to particular Senator’s objections with respect to holds, with respect to blue slips, with respect 

to objections they would have. 

The best process is to try to see where that comity can come. 

Also— 

Chairman CORNYN. And you think that is a good thing that judicial nominees are killed in the confirmation process because a single Senator or any small group of Senators may object to the nominee? 

Ms. GREENBERGER. Well, that certainly was the history that I 

must say I was very concerned about during the Clinton administration. 

36

Chairman CORNYN. I am just asking if you think it is good or 

bad. 

Ms. GREENBERGER. I think that what we saw during the Clinton 

administration was an abuse of that process, and we saw nominee 

after nominee never getting a hearing, to begin with, and why that 

nominee never even got a hearing year after year, after year, is 

hard to say whether it was one Senator or what the problem was. 

That is often not open to the public scrutiny to know. I do not think 

that kind of secrecy was a good thing when I was abused, as it was, 

with so many nominees in the Clinton years who could not get a 

hearing or, if they did get a hearing, then never were sent to the 

floor. Senator Lott said he had many better things to do than confirm judges. 

Chairman CORNYN. What I am trying to understand, though, is 

if you are saying that it is a good thing or a bad thing, regardless 

of who is in White House, for a single Senator or perhaps the Judiciary Committee, as a whole, to be able to have the power to 

thwart perhaps a bipartisan majority who would otherwise confirm 

that Senator? I am asking without regard to partisanship, without 

regard to who is in the White House, do you think that is a good 

thing or a bad thing? 

Ms. GREENBERGER. And that is the spirit that I am trying to answer your question with. I think because it is facts-and-circumstances kind of answer, and what we saw with respect to— 

Chairman CORNYN. Sometimes it is good and sometimes it is 

bad. 

Ms. GREENBERGER. I think when it is abused, I think when it 

ends up putting in peril many nominations without articulated reasons, that is not a good thing. I think that is very different than 

the filibuster which is the subject of this hearing and the focus of 

this hearing, which is out in the public, where we are talking about 

at least 41 Senators who have to express their deep concerns, and 

that is very different than what we saw during the Clinton administration, where things were behind closed doors and not subject to 

public scrutiny, and there really were abuses. There is no doubt 

about it. 

And if you would— 

Chairman CORNYN. If I could—and I have not Professor 

Gerhardt, I apologize, I asked an initial question, and my time is 

running out for this initial round, but it looks like Senator Feingold 

and I are going to have a chance to do a number of rounds, since 

are the only two here now. Hopefully, we will be joined by other 

Senators, but I asked Professor Gerhardt if it was fair to characterize your testimony as ‘‘if it ain’t broke, don’t fix it,’’ and I wanted 

to certainly give you a chance to respond. 

Mr. GERHARDT. I appreciate that very much, Senator. 

I am not sure I do think the process is broken, and I think a lot 

depends on what the ‘‘it’’ is to which we are referring; in other 

words, a lot depends on what you think might be broken. I do not 

think the filibuster is constitutionally defective, I do not think the 

rules of the Senate are themselves problematic, and so I would not 

recommend fixing those things. I do not think the system is broken. 

At the same time I have the impression that, by and large, most 

nominations go through this process rather smoothly, and the fricVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
37

tion is focused on a relatively few number of nominations. That 

might be inevitable, and it might not be a bad thing for there to 

be a great deal of debate. 

As for one other aspect of that process, Senator, you asked about 

whether it is a good or a bad thing for an individual Senator to nullify a nomination. It seems to me to be a good thing that an individual Senator has the prerogative, but like any prerogative, it can 

be used for good or it can be used for bad. So I would make a distinction between the discretion that a Senator has and how he or 

she may use it, but that is something for which they stand politically accountable. And I think that is how our system operates. 

If I may, Senator, and maybe if I can do this as a personal privilege, I just want to correct one thing that Dean Kmiec said. He 

quoted from my book, but I do not think it was accurately quoted. 

My critique of the supermajority requirement was actually a critique directed at a constitutional amendment proposed by Bruce 

Ackerman. I was critiquing a constitutional amendment, and the 

suggestion is I was doing so on the ground that it violated majority 

rule in the Senate. In fact, I was weighing the merits of a majority 

voting margin in the Senate against a constitutional amendment to 

displace it. 

Chairman CORNYN. Just one last question, and then I will turn 

it over to Senator Feingold. 

I am glad you brought up the question of the book that you have 

written, and I guess that is either a blessing or a bane when you 

write a book and have to then live with what you have written. 

And I just want to hear whether you still agree with what you have 

written, or maybe you can just put it in context and explain. 

The book you published in the year 2000, ‘‘The Federal Appointments Process: A Constitutional and Historical Analysis,’’ criticizes 

the proposal that I guess was by Mr. Ackerman for conforming 

judges, and in that book, you state: ‘‘The final problem with the 

supermajority requirement is that it is hard to reconcile with the 

Founders’ reasons requiring such a vote for removals and treaty 

ratifications but not for confirmations. The Framers required a 

simple majority for confirmations to balance the demands of relatively efficient staffing of the Government.’’ 

I just want to be clear. Do you still adhere to that statement? 

Mr. GERHARDT. Oh, very much so, Senator, because again, what 

I am doing there is responding to a proposed constitutional amendment, and I might point out that Professor Ackerman’s constitutional amendment proposal was to amend the final vote necessary 

for choosing Supreme Court Justices, not just judges generally. 

So my discussion about supermajority voting was done in that 

context. I was basically saying I thought a majority vote made 

more sense than a supermajority vote in the final action on Supreme Court nominations. 

Chairman CORNYN. You would agree, finally, that the Senate 

cannot adopt a rule that conflicts with the Constitution; correct? 

Mr. GERHARDT. That is correct. But I also think that the rules 

generally may be amended only in accordance with the rules. 

Chairman CORNYN. Thank you. 

Senator Feingold, let me turn it over to you. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

38

First let me ask unanimous consent to put the statement our 

Ranking Member of the full committee, Senator Leahy, in the 

record. 

Chairman CORNYN. Certainly; without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Let me thank all the witnesses for your patience, and I hope you 

do not regard the long statements by Senators as in any way a constitutional or unconstitutional filibuster. 

Mr. Fein, let me start with you. It is a pleasure to see you again. 

I enjoyed having you testify before this Subcommittee 5 years ago, 

when Attorney General Ashcroft was Chairman of this Subcommittee, about the importance of maintaining an independent 

Federal judiciary. I appreciated your testimony and your responses 

to my questions at that time. 

Now, unlike some of our other witnesses here today, you have 

sharply criticized both Republicans and Democrats for holding up 

judicial nominees—I give you credit for that—and in a 1997 New 

York Times op-ed, you criticized your chairman, Chairman Hatch 

at that time, for holding up Clinton nominees. You wrote: ‘‘Mr. 

Hatch has vowed to prevent confirmation of Clinton nominees he 

deems likely to be judicial activists. He insists that a philosophical 

litmus test will not infect the confirmation process with politics, 

but it was Mr. Hatch and other Republican Senators who complained about just that after Robert Bork was rejected for a seat 

on the Supreme Court because of his judicial philosophy.’’ 

You went on to say that ‘‘Republicans seem to have forgotten 

what Alexander Hamilton instructed in Federalist 76, that the Senate is confined to screening judicial nominees for corruption, cronyism, or incompetence. Judicial philosophy is not on Hamilton’s 

list.’’ 

Now, I assume that in that article, you were criticizing the 

Chairman for delaying or simply not granting hearings for your 

opinion between holding up nominees by not granting them hearings and filibustering of judicial nominees. 

Are both of these tactics equally subject to constitutional attack? 

Mr. FEIN. I believe so. If the purpose is to prevent a majority in 

the Senate from voting, I believe it is subject to constitutional attack. 

But I want to amplify on an element here that perhaps has been 

obscured. It seems to me that if the Senate majority wishes by acquiescence, inaction, by carrying over rules or affirmative vote, confirming power on Committee chairmen or committees to kill nominations, wishes at any time to give a minority a veto over a nomination coming to the floor, that is their entitlement. The majority 

can give away, but then it can also take back. 

So it is my view that at any time, a Senate majority could perhaps by resolution or otherwise vote to instruct that there should 

be a disregard either by a presiding officer if there is a filibuster, 

or if a nomination is being held up in Committee, to instruct that 

it would be unconstitutional to deny a vote in the full Senate on 

a judicial nominee, and I think that Senate vote would prevail 

under the Constitution over the obstruction tactics that you have 

identified and that I thoroughly deplore. 

39

But if the Senate decides not to do anything, it seems to me the 

majority is ill-equipped to complain, then, that they are sitting and 

not challenging what they think is a hijacking of a majority process 

by a minority. 

So I am not, I do not think, censoring at all the Democrats in 

this particular instance from asserting their rights under the rule 

if the Republicans want to acquiesce in that. I still insist, however, 

that if the Republican majority wanted to go forward, they could. 

Senator FEINGOLD. I appreciate your candor on this, because I 

have been on this Committee throughout that period that you criticized, and I am confident that if what is being proposed today is 

somehow unconstitutional, then what was being done then was also 

unconstitutional. 

Mr. FEIN. Absolutely it was. 

Senator FEINGOLD. Professor Eastman, let me first return briefly 

to your reference to Robert M. LaFollette, as I am compelled to do. 

I think he is the greatest leader ever to come out of Wisconsin. I 

am sorry that you see your blood line with him as a black sheep 

situation. 

I just want to remind you that Senator John F. Kennedy was 

asked to chair a commission in the 1950’s and to pick five Senators 

in the history of the Nation to be honored in the reception room. 

Well, three of them were so easy they could not even discuss it—

Clay, Calhoun, and Webster. They thought, well, we had better 

have two from the 20th century. Let us get one on the conservative 

side and one on the progressive side. They picked Robert Taft on 

the conservative side, and who was the fifth? Robert M. LaFollette 

of Wisconsin. And it is his face that you see as you enter the Senate Chamber. 

There is no way that I could leave the record anything other 

than rebuking your remarks about the great Robert M. LaFollette. 

Professor? 

Mr. EASTMAN. Senator, thank you for reviving my family’s name 

in that regard. 

Senator FEINGOLD. Very good. 

Professor Eastman, you wrote an article published in June 2002 

in the publication ‘‘Nexus’’ entitled, ‘‘The Senate is Supposed to Advise and Consent—Not Obstruct and Delay.’’ Let me quote from 

that article. 

‘‘The very existence of the judiciary is premised on the fact that 

the majority is not always right, allowing the Senate elected by the 

majority too great a hand in regulating the Federal bench, risks 

eroding the judiciary’s power to perform this most crucial task.’’ 

You wrote this, of course, when Democrats were in control of the 

Senate, and you were harshly critical of their treatment of judicial 

nominees. 

Less than a year later, with Republicans in control of the Senate, 

you come before the Committee and testify as follows: ‘‘The use of 

a filibuster for dilatory purposes is particularly troubling in the 

context of the judicial confirmation process, for it thwarts not just 

the majority in the Senate and the people who elected that majority, as any filibuster of ordinary legislation does, but it intrudes 

upon the President’s power to nominate judges and threatens the 

very independence of the judiciary itself.’’ 

40

Professor Eastman, we see changes of position because the political situation changes all the time in the Congress. But you are appearing here as an unbiased constitutional scholar. It seems to me 

that the only way to reconcile your two positions, one before and 

one after the 2002 elections, is to conclude that you think Senate 

Democrats, whether in the majority or the minority, should have 

no role in the nominations process, and President Bush should be 

able to appoint and have confirmed whomever he wants to the Federal bench. 

Can you give us another explanation for your two conflicting 

statements? 

Mr. EASTMAN. Senator, I do not see anything conflicting in those 

statements at all, and let me be very clear. In both my testimony 

today and my testimony in the House of Representatives last fall 

and in that article, I have said that the Senate does not have the 

primary role in the appointment process, that the President does. 

And I said that both when this President was in office and when 

President Clinton was in office, that the primary role for the appointment process itself was given to the President because the 

Framers were concerned that by giving a primary role or a central 

role to a collective body would induce cabal and that to avoid that, 

that the Senator’s role was much more limited to providing a check 

on the President. 

And what you are talking about now when I produced that article was that the Senate Democrats were not just using it as a 

check on the President for untoward appointments, for appointments made out of bribery or for nepotism purposes, but because 

they disagreed with the judicial philosophy about which the President had waged his campaign, in part. And I thought that the use 

of ideology for that purpose was illegitimate. 

I left open the possibility to use ideology when a nominee comes 

before this body and says something that makes it impossible for 

him to honor his oath of office, that if a nominee were to come before this body and be asked, for example, as I point out in that article, the question, If the law and the Constitution was clear, and it 

disagreed with your personal conscience on a subject, which way 

would you rule as a judge—to uphold the law or to further your 

conscience—and that nominee that I referred to in that article said 

‘‘To my conscience.’’ 

I think that that is a demonstration of a disqualifying ideology 

and is one of the limited instances when the Senate does have the 

obligation to take ideology into account. But beyond that, to thwart 

the role of the President merely because Senators disagree with the 

outcome of an election I think is improper, and I think that is perfectly consistent with what I said today. 

Senator FEINGOLD. Well, I recognize your response, except I do 

not think it resolves the problem that you had one view about majority rule under one Democratic President and another view about 

majority rule under a Republican President. 

Now, you wrote in the same 2002 article when the Senate was 

controlled by Democrats, and you were outraged by delays in confirming President Bush’s judges, that ‘‘The refusal to hold hearings 

at all is not advice or consent. It is political blackmail, which perpetuates the critical number of vacancies on the Federal bench.’’ 

41

As you are aware from your own previous writings during the 

Clinton Presidency, the Republican-controlled Senate Judiciary 

Committee refused to hold hearings on numerous Clinton judicial 

nominees. When various judicial nominees of President Clinton 

were denied a hearing and never allowed a vote and in some cases 

were even filibustered on the Senate floor, did you ever, Professor, 

write or speak out against any of the very tactics you publicly criticized in 2002? Why not, if you did not? And do you agree that these 

practices were as wrong then as you say they are now? 

Mr. EASTMAN. I think I agree with Bruce Fein’s statement on 

that, that if the majority is willing to acquiesce, there is not a problem. 

I do think it presents a problem for the minority or for a majority 

from a prior Senate to try to entrench a rule that prevents the majority from ultimately having its way. 

I think we need to distinguish between two uses of the filibuster 

and two uses of a hold or two uses of a Committee hearing. There 

are some nominees who simply do not have any majority support 

in the full body, and it would not be worth the effort to go through 

the process. But what we were talking about in the instances that 

I referred to in my article is where there had already been a majority of Senators expressing their views to support a nominee who 

was being bottled up in Committee. That process, then—the Committee holds and the refusal to hold hearings were in fact thwarting the will of the majority even of the body under Democratic majority control. 

So I think it is perfectly consistent that in both instances, I have 

said we need to get to a process that ultimately, after extensive 

and reasonable debate, lets the majority have its say, because to 

do otherwise, to impose a supermajority requirement contrary to 

the Constitution, intrude on the President’s power and threaten the 

independence of the judiciary. 

Senator FEINGOLD. Mr. Chairman, I think that at least one good 

thing has come out of this hearing. We have a witness on both 

sides here, both publicly stating that what was done when the Republicans controlled the Senate was wrong and perhaps unconstitutional under this theory—or, actually, it was Mr. Fein—excuse 

me—two witness on this side suggesting that. And that is very important because the American public is being misled that somehow 

this is something that began after President Bush became President. That simply is not the truth, and I stand here as a person 

who enraged a number of my supporters by voting for the confirmation of John Ashcroft as Attorney General, because that had 

never been politicized, because that kind of game has never been 

played in Cabinet appointments. 

But I will stand here as the same Senator and tell you that what 

was done to President Clinton’s right as the President of the 

United States for his second term was in my view unconstitutionally wrong. 

Therefore, Mr. Chairman, any attempt to resolve this problem, 

which I know you sincerely want to do, has got to be something 

other than that George Bush gets all his nominees, and gee, hopefully things will be better when the Democrats have a President. 

It does not justify payback—you and I have talked about this—but 

42

it requires a recognition of what was done in the past, a public admission that what was done with regard to the Democrats was simply wrong and distorted—distorted—the Federal judiciary, because 

the Federal judiciary should have represented the results of the 

1996 election, and it did not. 

Thank you, Mr. Chairman. 

Chairman CORNYN. I see that Senator Durbin has joined us, and 

Senator, if you do not mind, let me ask a few questions and then 

I will turn it over to you, in the spirit of going back and forth 

across the aisle in the course of our questioning. 

Dean Kmiec, I was interested in both your and Professor 

Calabresi’s comments regarding Blackstone’s dictum about no parliament can bind the hands of a future parliament and how you 

view Senator Rule XXII, which provides for the cloture requirement 

of 60 votes before debate can be ended. 

I would be interested in how you reconcile, if you can, or any 

comments you have on Senate Rule XXII in that context. 

Mr. KMIEC. Thank you, Senator. 

I think there is an agreement emerging perhaps on the panel 

and among the Senators as well on this constitutional proposition, 

that a majority of the Senate must have within its constitutional 

authority the power to amend its own rules. 

If that is the case, then a carryover rule, Rule XXII, that denies 

you as a new Member of the Senate the opportunity to pass upon 

the question of whether or not cloture for a judicial nomination 

ought to be a simple majority rather than 60, or actually, to amend 

rules—as you know, Rule XXII requires 67 votes—then that is an 

unconstitutional entrenchment of prior rules. 

Now, Senator Feingold said just a minute ago that there have 

been abuses on both sides, and I have tried to say in my statement 

that I concur. One thing I know about being a dean is that if you 

are going to get beyond disagreements on a faculty, you have to put 

aside the past hurts and infringements and encroachments and 

look at the vision in front of you. And I think that that is what this 

hearing is about. 

The vision in front of us is whether or not we can operate in a 

constitutionally appropriate manner with regard to the rules that 

apply to judicial nominations. Rule XXII as it is presently being applied to judicial nominations, which is something that has emerged 

only with regard to the past two nominations, is in fact an unconstitutional entrenchment in my judgment, and I have not heard a 

dissenting voice from that on the panel even as Professor Gerhardt 

has raised the issue that filibusters in general are not per se unconstitutional. 

No one has argued that—at least I am not arguing that—but 

Rule XXII, which entrenches a 60-vote requirement, has those constitutional problems. 

Chairman CORNYN. Yes, Professor Calabresi? 

Mr. CALABRESI. Thank you. 

I also would agree that Rule XXII is problematic to the extent 

that it purports to entrench the views of the prior Senate. I think 

the principle that prior legislatures cannot bind their successors is 

a fundamental principle of English and American constitutional 

law. It is so for a very good reason. If this Congress were able to 

43

pass a bill and provide that it could only be repealed by a twothirds or a three-quarters majority in the future, that would improperly rob future Congresses of the role that the Constitution 

gives them. 

It seems to me that that is what Rule XXII does to the extent 

that it purports to say that a majority of the Senate cannot change 

the rule. 

I do agree with Bruce Fein and John Eastman that a majority 

of the Senate can adopt rules that structure their deliberations by, 

for example, setting up, of course, committees and processes for 

blue slips and holds whereby things may not be brought up for a 

vote, but if a majority of the Senate wants something brought up 

for a vote, and if the majority of the Senate wants to change Rule 

XXII to provide for that, that seems to me to be totally warranted. 

I guess I would also say that while I think that there were—Senator Feingold mentioned that there were a number of Clinton 

nominees who may not have received as good treatment as they 

perhaps deserved. Elena Kagan, who has now become the dean of 

the Harvard Law School, is one of those nominees, somebody whom 

I know and think highly of, and I wish that her nomination had 

been acted on. 

But it seems to me that allowing a delay through filibustering of 

2 years and taking up a nomination like Miguel Estrada’s or Priscilla Owen’s is a whole new order of magnitude of delay. 

Mr. GERHARDT. Senator, may I correct the record? I am real 

sorry to interrupt; excuse me. 

Chairman CORNYN. I noticed that when the dean was saying he 

thought a consensus was emerging, you were shaking your head, 

so please go ahead. 

Mr. GERHARDT. I am sorry, Senator. Excuse me. 

Chairman CORNYN. Go ahead, please. 

Mr. GERHARDT. I appreciate it. I just want to point out quite 

briefly that I guess we do not have the consensus, I regret to say. 

The last few pages of my statement spell out, and I will not repeat 

here, reasons why I think not only is the filibuster constitutional, 

but also the requirement for a supermajority vote to change the 

rule of filibuster. 

Entrenchment, I think—and this is the technical word—entrenchment is omnipresent within the legislative process, and I 

would only just point out a terrific article in the Yale Law Journal 

by Eric Posner and Adrian Vermeil, who argue against anti-entrenchment and defend supermajority voting requirements. A common example that they might give and that would challenge the 

Committee is that Congress uses sunset clauses in its laws all the 

time; those entrench policies. In fact, every time Congress passes 

a law, it has the potential for entrenching policies. 

So I think entrenchment and the possibility of a current legislature binding the hands of a future one is always there. 

Ms. GREENBERGER. Could I also say— 

Chairman CORNYN. You would agree, wouldn’t you, Professor 

Gerhardt, that if a subsequent legislature decided to change or 

amend that law, it is certainly at liberty to do so? 

Mr. GERHARDT. By the appropriate voting procedures, yes, sir. 

Chairman CORNYN. Okay. 

44

Ms. GREENBERGER. Senator, could I just— 

Chairman CORNYN. I want to just clarify with Professor Eastman 

and Mr. Fein some of your earlier statements. 

Do you say that the prior use of blue slips or Committee rejections are always unconstitutional, or just unconstitutional if the 

majority disagrees but is prevented by filibuster from doing anything about it? 

Mr. FEIN. Well, I am just saying that the Senate has a right at 

all times by majority to overrule a deference—or a blue slip or otherwise. If it wishes to acquiesce in a blue slip at any particular 

point, that is up to the majority. But what becomes unconstitutional is an attempt to handcuff the majority from deciding they 

want to depart from their customary deference to minority at this 

time and vote. 

Chairman CORNYN. Professor Eastman? 

Mr. EASTMAN. I agree with that. And for a Republican majority 

in the 1990’s to have deferred to its committees does not raise the 

same kinds of constitutional issues, or for a Democrat majority to 

have deferred to its committees does not raise the same kinds of 

constitutional issues, as when we are talking about a minority of 

either party being able to thwart the will of the majority. 

Now, they are not yet thwarting the will of the majority. The 

Senate rules have carried over. It is incumbent upon this body if 

they think there is a problem with the supermajority requirement, 

as I think there is, to enact a modification to that requirement. 

And I do not think there is any disagreement on that point. 

Where there is disagreement is on whether this Senate can be 

bound by the two-thirds requirement carried over from a prior 

body, and I think most of us up here say that that would be unconstitutional, that it would give a supermajority requirement carried 

over from a prior body—and imagine a Senate that got 70 Democrats or 70 Republicans in a particular election, and they put in a 

bunch of rules that favor them in perpetuity, and then they say, 

‘‘And we are going to lock this in with a supermajority requirement.’’ That would clearly be unconstitutional, and I think the entrenching provisions of Rule XXII are equally unconstitutional. 

Mr. FEIN. if I could just amplify on that response with regard to 

potential litigation, it does seem to me that if the Senate majority 

itself does not take any action, if a challenge were brought in court 

to the filibuster rule, the court would say, ‘‘You have a self-help 

remedy; why are you complaining to us?’’ And I think it would be 

most injudicious to try to contemplate litigation without the Senate 

majority taking the reins and taking political accountability for altering the filibuster rule, which can be very tough, and trying to 

hand it off to some court, saying, well, this is wrong because the 

filibuster rule imposed by the Senate itself is thwarting the majority. 

Ms. GREENBERGER. Senator Cornyn, I am just feeling very nervous at not being able to disassociate myself also from Dean Kmiec’s 

sense that there was a consensus emerging. I know that Professor 

Gerhardt has made clear for purposes of the record that he is not 

part of the consensus. I want to be sure that I for purposes of the 

record make clear that I am not as well. And I do think that I cannot help but see a connection between some of the concerns of some 

45

of the nominees that have provoked such strong opposition to lead 

to a filibuster or, in cases where they were not filibusters but still 

very strong negative votes, the fear is of an activist judge who will 

disregard the rule of law. 

To me, what is being discussed here is disregarding the Senate’s 

rule of law in a similar activist and lawless and very distressing 

way. So I just want to be sure that that is understood. 

Senator FEINGOLD. Mr. Chairman, I want to intervene here to 

also say that I— 

Chairman CORNYN. That you are not part of that consensus, either? 

Senator FEINGOLD. I am not, and I want it on the record that I 

do not view Rule XXII’s requirement that a supermajority is required to cut of the debate on a change of a rule as being unconstitutional. Rules can be changed by majority vote, but the Senate 

still has the right to set its own rules of debate, and we are very 

short of a consensus here on this Committee. 

Chairman CORNYN. Well, we are working on it. 

Finally, let me just ask—and then I will recognize Senator Durbin—Ms. Greenberger and Mr. Gerhardt, you both cite a Law Review article by Catherine Fisk and Irwin Chemerinsky to support 

your conclusions. I take it, then, you agree with the constitutional 

analysis in that article? 

First, Ms. Greenberger. 

Ms. GREENBERGER. Yes, I agree with parts of it, but I do not 

agree with all of it. I think that part of what that article dealt with 

was this very issue that is being discussed about entrenchment, 

and I think that one of the things that is always important is to 

be sure that those authors have an opportunity to explore and explain their views, and that is not something that I have had the 

opportunity to hear from them about. But I do think their point 

with respect to the filibuster is something that I agree with. 

I want to also— 

Chairman CORNYN. I am sorry. Let me ask you, rather than volunteer statements, let me just ask some questions. I find your response interesting because they rested their analysis on the assumption that it only takes a majority to change the rules and that 

Rule XXII cannot be used to impose a two-thirds voting requirement for debate on a rule change. 

If you endorse the Fisk–Chemerinsky constitutional analysis, 

then I assume you believe that a majority of the Senate can get rid 

of the filibuster—or is it that you agree with part of it, and is that 

consistent with what you said earlier—you agree with part of what 

they said and not other parts? 

Ms. GREENBERGER. I think that certainly if, following Rule XXII 

and the supermajority vote that is required, the two-thirds vote 

that is required, to either change the filibuster, as of course the 

Senate has done in the past—it has altered the nature of the filibuster rules on repeated occasions in the past, so I would certainly 

say that under Rule XXII, there is the set procedures for changing 

the filibuster rules and following Rule XXII’s prescriptions—the 

Senate of course could change the filibuster rules if it so decided. 

But I do believe— 

46

Chairman CORNYN. It would require 60 votes to close off debate 

in order to change that filibuster rule; is that what you are saying? 

Ms. GREENBERGER. Well, certainly it would require the filibuster 

cloture vote, too, but then there is also the issue with respect to 

changing the rule itself and getting to the merits and to the underlying requirements of the two-thirds vote. 

Chairman CORNYN. Let me correct myself. Actually, it is twothirds. I think that point was made earlier. 

Ms. GREENBERGER. Right. 

Chairman CORNYN. I have gone way over in my time, and at this 

time I would be happy to recognize Senator Durbin for any questions he may have. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Senator Cornyn, and 

thanks to the panel. 

I would just like to make a couple of observations. Before I came 

to Congress 20 years ago, I was the parliamentarian of the Illinois 

State Senate for 14 years. So I sat there with those rules and 

worked with them every day; that was part of my life. So I understood them. That was what I was paid to do, and I understood 

those rules. 

Then I came to the U.S. House of Representatives, and it was a 

struggle with Jefferson’s Manual and the new House of Representatives Rules. 

And then I came to the Senate and faced a new set of rules—

and again, I am a student—I do not profess to be an expert. But 

I did notice one essential difference as I moved from a State Senate 

to the U.S. House of Representatives to the United States Senate. 

Without fail, after every election in the Illinois State Senate, we 

adopted our rules. Without fail, after every election, the U.S. House 

of Representatives adopts its rules. Without fail, after every election, the Senate does not adopt its rules. Now, why is that? Because they are continuous. Those rules continue. Even though we 

are a subsequent Congress, we are a new group of Senators for our 

own purposes. From the viewpoint of the Senate and its tradition, 

we are a continuing body. Robert Caro makes that point I think 

very graphically in his book about LBJ, which most of us have 

read, and I think that is being overlooked today by so many people 

who say, ‘‘Well, this is a new Congress. You ought to be able to 

start out anew.’’ 

We never do. We start off with the old rules, and we do not even 

adopt them because no one has wiped them away. They are still 

there today as they were before the election, and that creates a different premise for this debate as far as I am concerned. 

The second thing I would like to say is that early in the third 

quarter, for those who are keeping score, the score is 123 to 2—

123 to 2. President Bush as of this afternoon has received 123 

judges that he has asked for, and exactly 2 have been held up. 

You would assume from this hearing that the numbers were exactly the opposite—that we had only approved 2, we have filibustered 123 judges—and it is just an outrage. 

47

Well, I would like to put it in perspective. I understand why Senator Cornyn called this hearing. It must be curious to you as a new 

Senator to come in at this point and wonder why has the Senate 

tied itself in knots over a judicial nomination to the point where 

there is a real difference, and the filibuster is being used on two 

of the nominees. 

And I would simply say to you that there were several games 

played before you arrived—in fact, at least 59 games played on 

Clinton nominees who were never given a hearing, never given a 

day in court, never given a chance to sit at that table—59 different 

individuals. 

Now, there are those who are arguing that in and of itself, there 

is nothing wrong with that, but it is clearly wrong to use the filibuster on two nominees sent by the Bush White House. I do not 

think that that follows, and I think that is the point made by Senator Feingold. If the rules of the Senate could countenance the abusive treatment of 59 Clinton nominees and say, ‘‘It is the rules of 

the Senate; you have got to live with it, Democrats—sorry,’’ to 

stand back now and say, ‘‘The rules of the Senate cannot be used 

to stop a Bush nominee. There is a constitutional principle at stake 

here,’’ does not work. It was either unconstitutional then and is unconstitutional now, or vice versa. Take your pick. 

But having said that, what is also, I think, unspoken here is that 

we understand the agenda during the Clinton years. The agenda 

was to leave as many vacancies as possible, particularly at the circuit court level, use the Senate rules, use whatever you can, in the 

hope that a Republican would be elected President who would fill 

those vacancies. That is what this is all about. We are playing ping 

pong above the table and rolling bowling balls at one another below 

the table. That is what this debate is all about. 

I think the only way to resolve it is if something happens which 

would be truly miraculous, and that is a surrender of power by our 

President, and I do not think he is going to do it. 

One or two of the suggestions that have been made to try to find 

some bipartisan way out of this are not likely to be embraced by 

this White House—maybe it would never have been embraced by 

a Democratic President. But until then, we are going to find ourselves in this tangle. 

And I might also add parenthetically that when you are dealing 

with judges of the kind that are being held up and the kind that 

may be challenged in the future, this is going to happen again. We 

live in a closely-divided Nation politically, in a closely-divided Senate, and with closely-divided courts, and it is no wonder that one 

or two nominees become determinative. 

I would just like to ask maybe Professor Calabresi, since you are 

from my home state—and let me just add that I am not part of 

your ‘‘angry minority’’; I have a smile on my face, and I am doing 

my best. I am not angry over this, but I am anxious to find some 

justice in the situation. 

Could you tell me how you could rationalize the treatment of 

Clinton nominees under Senate rules being denied even an opportunity for hearing as being constitutional, and the use of the filibuster rule as unconstitutional? 

48

Mr. CALABRESI. Sure. Actually, let me comment on several of the 

things that you said. First, with respect to your comments about 

the Senate being a continuing body, the Senate of course is a continuing body, but then, each new Senate organizes itself differently, 

perhaps with a different majority and minority leader— 

Senator DURBIN. Under the Senate rules. 

Mr. CALABRESI. [continuing.] With different members on Committees. If the Senate were completely a continuing body, then presumably the previous allocation of Committee slots might maintain 

itself and be perpetuated. 

Senator DURBIN. But under the Senate rules. 

Mr. CALABRESI. Second, with respect to numbers of nominees, 

you mentioned that there are two individuals up to now who have 

been filibustered, who have been held up for a period of 2 years or 

so. Those two individuals are being nominated to be one of 175 

Federal Court of Appeals judges in the country. I find it very hard 

to believe that the sky would fall if one of the 175 court of appeals 

judges in the country were an individual of the caliber of Miguel 

Estrada or Priscilla Owen. 

With respect to the Clinton period, I think a Senate majority 

does have the right to figure out what hearings to schedule and 

what hearings to hold. 

Senator DURBIN. Under the Senate rules. 

Mr. CALABRESI. Yes, yes, under the Senate rules which can be 

changed by majority vote by each succeeding new Senate. And it 

seems to me that the majority of Senators has a right basically to 

alter the Senate rules if it wants to do so. 

I do think that some individuals who were talented should have 

gotten action during the Clinton years. I specifically mentioned 

Elena Kagan who was nominated for the D.C. Circuit, who is now 

becoming dean of the Harvard Law School. As it happens, she and 

I clerked together on the Supreme Court with Miguel Estrada, and 

I had a very high opinion during those years of both Miguel 

Estrada and Elena Kagan, and I am sorry that there was not action taken on her nomination. I do not think that not acting on 

Miguel Estrada’s nomination is going to make the situation any 

better. 

Senator DURBIN. Mr. Gerhardt? 

Mr. GERHARDT. Yes, sir. With all due respect, Senator, I might 

want to go back to the question that Senator Cornyn asked me initially. 

Senator DURBIN. On his time—no, go ahead. 

Mr. GERHARDT. Oh, I’m sorry. On the Chemerinsky article, Senator, I would say that I am quite good friends with both of the authors, and we agree on some things and disagree on a lot. I would 

say that I agree with some of the article; I disagree with some constitutional analysis in it as well, and I certainly disagree with their 

conclusions regarding the requisite vote for changing Senate rules. 

I might add that in fact I disagree to some extent even with their 

methodology. And you will note that I reached the constitutionality 

of filibuster by a different route than they do. So I rely on them 

for factual matters but not otherwise. 

I just want to echo Senator Durbin’s eloquent remarks, because 

I do think the continuity of the Senate is a critical thing here, and 

49

that explains, I think, the unique circumstances of the Senate. 

While we can quote Blackstone, what he said that might have been 

true for the British Parliament and the British system, but it has 

nothing to do with the American system and the unique constitutional structure that includes Article I, Section 5, that empowers 

each Chamber to adopt rules for its respective proceedings. 

Senator DURBIN. Mr. Fein, did you want to comment? 

Mr. FEIN. Yes. One, I think that your comments really expose the 

kernel of the problem here. I think there is a sense on both sides 

of the aisle that there has been partisanship played whenever it 

suited their purposes and each side exploited the rules to their advantage but then wished to change the rules of the game when 

they fell to the minority party. 

There is no way to write a constitution with sufficient clarity in 

order to avoid the kind of logjam we are in now if a majority wants 

to take its power to an extreme, or a minority, exploiting the rules. 

There are what I call a series of unwritten elements to our Constitution. There are rules of self-restraint that, if not complied 

with, are going to have the whole system shipwrecked. A President 

could destroy a department he did not want simply by refusing to 

nominate anybody. If he does not like the Department of Education, he will not nominate a Secretary of Education or any assistant secretaries. Unless there is self-restraint and an agreement, 

tacit, that there will not be an exploitation in order to destroy what 

is commonly accepted in the public as popular will or the results 

of an election, I do not think there is any rule that you could adopt 

that is going to overcome the problem. 

Let me make one observation, however, with regard to the idea 

of a continuing Senate. I think your observation is quite accurate 

and forceful, but I do not think a continuing Senate can override 

Article II of the Constitution, which says in the Appointments 

Clause, so to speak, if you get a majority, and the majority forces 

a vote, then you have a confirmed judge. And in my judgment, even 

though the continuing Senate means that each Senate rule enjoys 

the same dignity as the any other even if it is a was a carryover 

from a previous Congress, still, if a majority of the Senate wants 

to exercise its muscle, so to speak, and force a vote on the floor, 

I think that the majority decision overrides the Senate rule by dint 

of Article II. 

Senator DURBIN. I think I am out of time, unfortunately. I wanted to let Ms. Greenberger make a comment. 

Chairman CORNYN. Certainly we have time to do that, Senator 

Durbin. Go ahead. 

Senator DURBIN. Thank you. 

Ms. Greenberger? 

Ms. GREENBERGER. Thank you. Thank you both Senators. 

I just wanted to make a couple of quick points. First of all, what 

we are talking about here, as I think Mr. Fein said at the end, is 

changing what the rule says with respect to needing a supermajority in order to change the rule. So that is the crux of whether 

or not the Senate can ignore these continuing rules and make up 

a new rule under these circumstances. 

There was no such changing of rules in the past, and while there 

may have been abuses of the rules—and that, Senator Cornyn, is 

50

what I was referring to as being unhappy about—I do take issue 

with Mr. Fein saying that both sides were changing the rules. I do 

not think that there was a changing of the rules in the past in contrast to what is being articulated now, under the theory that the 

current rules are unconstitutional. 

Second, I wanted to make a point with respect to the concept of 

a fresh start. Everybody wants to have a fresh start on the one 

hand; but a fresh start that ignores where we are today as a result 

of problems in the past is not a realistic way of having a fresh start 

that accommodates what I think people are looking for. 

Senator Feingold pointed out that there is a current distortion in 

the system as a result of what happened in the past. It is not sufficient to say, ‘‘Oh, I wish things had been done differently. There 

were problems in the past. I am sorry about them. I pointed them 

out in the past, and now I am pointing them out in the current context.’’ That takes us only so far. 

We have consequences today because of those problems in the 

past, so any fresh start has to take into account the fact not that 

there are one or two judges out of 175, so what problems could they 

cause with respect to Judge Owen or Mr. Estrada, but because of 

those problems in the pastcontinue today, in 2003, we have a distorted judiciary. We do not have the kind of needed balance of 

views. We do not have the enrichment of the different perspective 

of judges that we would have had. 

And therefore, in exercising the advise and consent responsibilities of this Senate and all of these Senators in coming to grips 

with each of the nominees, it is my view that the Senate and each 

Senator has a constitutional responsibility to take into account 

whether each of these nominees in the circumstances of today belongs on a court of appeals or a district court or ultimately the Supreme Court, but especially with respect to these lower courts, because of the distortions of the past and because we do not have the 

kind of balanced judiciary right now that we would have had absent those distortions. 

Senator DURBIN. Thank you. 

I just want to conclude if I might, in 10 seconds. This is a discussion over an extreme procedure in the Senate. I think we are dealing with an extreme situation. It is one that we have not had before, and it is one that we can only deal with honestly, as has been 

suggested by my colleague, Senator Schumer, and others, and by 

Ms. Greenberger, if we deal honestly with the politics of this situation and where we are today. 

I will just close by reminding you that I have checked, and the 

score is still 123 to 2 in the third quarter, that is, the third year 

of the President’s first term. 

Thank you. 

Chairman CORNYN. Thank you. 

Senator Feingold? 

Senator FEINGOLD. I would like to offer to the record a few articles that Professor Eastman has written. 

Chairman CORNYN. Without objection. 

Senator FEINGOLD. I would also like to offer into the record a 

helpful letter, I think, from Abner Mikva, former White House 

51

counsel and Court of Appeals judge for the District of Columbia 

Circuit. 

Chairman CORNYN. Without objection. 

Senator FEINGOLD. Mr. Chairman, I want to also put in the 

record another clarification. I certainly do not think there was ever 

any majority acquiescence during the period described under the 

Clinton Administration. The Republican leader and the Republican 

Chairman never let so many of these Clinton nominees get a vote, 

and many did have majority support in the Senate; that is actually 

what happened. 

I am struck by this comment about self-restraint that I think is 

an important one. Let us just for 2 seconds look at the record. 

There was no self-restraint on the part of those who blocked the 

Clinton nominees, 59 people never getting through—there certainly 

was no self-restraint there. The Democrats’ record here, as Senator 

Durbin reiterated, is 123 to 2. So that all these vacancies, as Ms. 

Greenberger pointed out, were filled by Bush judges. 

The record is 123 to 2, and this hearing is premised on the notion that the Democrats have been extreme? It is absurd. Any fair 

person could not possibly look at the record of the last 8 years and 

conclude that it is the Democrat side that is extreme—and I am 

noted for not being particular partisan. 

I am just telling you, Mr. Chairman, that this is a travesty, to 

misinform the American people that somehow the Democrats have 

systematically blocked this. 

The fact is that there has to be some fairness, there has to be 

some recognition, as Ms. Greenberger just said very eloquently, of 

a systematic denial of what was the Clinton Administration’s right 

to have these judges come through. And I think 123 to 2 is awfully 

good considering what happened previously. 

Thank you, Mr. Chairman. 

Chairman CORNYN. Senator Feingold, as we started out by saying, or as I started out by saying, I believe that it was not particularly fruitful for us to go back and examine the abuses of the past, 

whether they be real or whether they be just perceived. As a matter of fact, all three of us—Senator Schumer, you, and I—and the 

other members of the Judiciary Committee see that being played 

out every time the Judiciary Committee meets and talks about a 

judge who is subject to some division of opinion. 

My hope was that we could somehow get a clean break with the 

past—and I hear what you are saying; some may feel like that in 

itself is not fair—but what is fair, I think, is that we cannot control 

the past, and the only thing we can do is try to have an impact 

on the future. And the rules, if there are rule change adopted here, 

certainly they would operate equally for the benefit of a Democrat 

who is present in the White House or a Republican. To me, this is 

largely a test of our hopes and aspirations for what this process 

could be, and not an approval of what it perhaps has been in the 

past. 

Senator FEINGOLD. Mr. Chairman, if I could just briefly respond. 

I think it is rare that one can go forward into the future without 

redressing past wrongs. There are ways to redress past wrongs. 

The administration does have within its power to recognize what 

was done and to negotiate with us about what happened. Those inVerDate 0ct 09 2002 13:03 Feb 18, 2004 Jkt 091833 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90460.TXT SJUD4 PsN: CMORC
52

dividuals in many cases are still available to be Federal judges. We 

recognize that most of the people appointed by President Bush 

should become judges. That in fact is the record. You may not like 

it that we refer to the past, but the actual record is we have approved 123 and only denied 2. 

So to say that in the context of this discussion, we should not 

refer to what happened in the past to me is not a suggestion that 

will actually help us move forward. We have to refer to it, because 

something has to explain why we would take such an extreme step, 

and we do admit it is an extreme step to filibuster judges. To not 

have a public discussion and regularly discuss how we got to this 

point is going to make it almost impossible to move forward. 

Chairman CORNYN. And just to clarify—and I do not really think 

we disagree even though I know it sounds like maybe we are right 

now—what concerns me so much is to hear comments on the floor 

of the Senate about ‘‘What is sauce for the goose is sauce for the 

gander,’’ or ‘‘Tit for tat’’—the kinds of recriminations and, frankly, 

things that are just beneath the dignity of this institution and the 

constitutional process in which we are engaged. 

I would wish that we could look forward and now have to relive 

the past—maybe that is not possible. The only problem is that for 

every Democratic Presidential nominee who was not confirmed, I 

am sure there are folks on my side who would say that when 

Democrats were in control, Republican nominees and the Republican President were not treated fairly. So I do not know where 

that takes us except continuing the downward spiral, and that is 

why I am hopeful, as a result of some of the proposals that have 

been made by Senator Schumer and others—I do not happen to 

particularly like his proposal, but I congratulate him and appreciate his willingness to make one. 

Let me just say two other things, and then I will recognize Senator Schumer for anything he has. I think what distinguishes the 

two nominees who are currently the subject of filibuster is that unlike the past, we have a bipartisan majority of the Senate that 

stands ready to confirm them today, and that is not true of any 

previous judicial nominee to my knowledge. 

The second thing is when I hear— 

Senator SCHUMER. If the Senator would yield, Paez and Berzon 

both went through with far more bipartisan majorities—I think 20 

or 25 Republicans voted for Paez and Berzon. 

Chairman CORNYN. But they were confirmed, were they not? 

Senator SCHUMER. You said that is the difference; that is not a 

difference. 

Chairman CORNYN. I am saying that a bipartisan majority 

stands ready to confirm two nominees today where the Senate majority is not able to effectuate its will because of the filibuster. 

Ms. GREENBERGER. If I might—

Chairman CORNYN. The only other thing— 

Mr. FEINGOLD. That is exactly what happened with Paez and 

Berzon. There was a majority, a bipartisan majority, at all times 

prepared— 

Chairman CORNYN. But they were confirmed, right? 

Ms. GREENBERGER. Well, and in fact, Senator Cornyn— 

53

Chairman CORNYN. Excuse me, excuse me. I am not through. I 

still have the floor. 

The other thing is that Senator Durbin said 123 to 2 is not bad 

for President Bush. The thing is I find it very difficult to reconcile 

that sort of statistic, if indeed we are supposed to pay attention to 

that kind of scorecard, with some of the caricatures that I have 

heard of President Bush’s nominees as being out of the mainstream 

or right-wing ideologues or otherwise unsuitable for confirmation. 

Now, as we all recognize, Senators are completely within their 

rights to vote against a nominee, and I will forever fight to make 

sure that that right is preserved, but I think 123 to 2 is hardly indicative to my mind of some sort of right-wing or out-of-the-mainstream ideology espoused by President Bush’s nominees. And I understand that we may differ—I know that we differ. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. 

I cannot think of a single Democrat the President has nominated—maybe they have—to the court of appeals. If he were nominating people without regard to ideology, you would think there 

would be a few. I do not know any—and Ms. Greenberger is here 

from the pro-choice point of view—it is not a litmus test for me, 

but I cannot think of one nominee who is pro-choice whom he has 

nominated who has said so. 

The person who has the ideological litmus test here is the President, and we all know it. the people who are here from the left 

know it, and the people who are here from the right know it. 

Chairman CORNYN. Well, if the Senator will yield, what I just 

said is that we do not all know it. I understand that that is your 

position. 

Senator SCHUMER. Yes. I think that everybody—any objective observer who looks—but I would ask the panel to name for me a 

Democrat the President has nominated to the court of appeals. 

Mr. EASTMAN. I will take that. Roger Gregory from the Fourth 

Circuit. And I have to weigh in. I just— 

Senator SCHUMER. Okay. Have you got another one? 

Mr. EASTMAN. Yes. Senator Feingold has introduced— 

Chairman CORNYN. Excuse me, Professor Eastman. 

I do want my very first hearing not to break into a free-for-all— 

Mr. EASTMAN. He asked. 

[Laughter.] 

Chairman CORNYN. —so I must— 

Ms. GREENBERGER. Could the woman who raised her hand get 

any special privilege? 

Chairman CORNYN. No; no hands raised. Let us do it on a Q and 

A, and certainly if Senator Schumer wants to recognize anybody, 

we will come back if we have time. 

Senator Schumer? 

Senator SCHUMER. Okay. And Gregory we know was first nominated by President Clinton and held up for what many would think 

were pretty awful reasons. 

How about another one? I mean, if we are doing this non-ideologically, there ought to be some scattering, and I do not know this. 

54

I want to ask the nominees, do you think Democratic nominees 

and Republican nominees to, say, the D.C. Circuit vote the same 

way because they are interpreting the law in a neutral way? 

Mr. CALABRESI. May I comment, Senator? 

Senator SCHUMER. Yes. 

Mr. CALABRESI. It seems to me if one looks at the past that 

President Clinton, I believe, was able to successfully appoint about 

370 individuals to the lower Federal courts. 

Senator SCHUMER. Right. 

Mr. CALABRESI. My recollection is that it was minusculely different from the number of people that President Ronald Reagan appointed in 8 years to the lower Federal courts. 

I think the argument that President Clinton did not have the 

same opportunity that President Reagan had to make an impact on 

the Federal courts just fails before the facts. 

Senator SCHUMER. Yes. But that is not the point I am making 

here. President Clinton’s nominees were not—again, by general 

view; let us take ideology out of this and make it the middle of 

where the American people are, not what each of us calls ‘‘mainstream,’’ because what some of us would call mainstream on the 

panel is different—and most of Clinton’s nominees—there were a 

few who were very liberal, but most tended to be moderate to moderate-liberals. 

Mr. FEIN. I am not sure that that is accurate. 

Senator SCHUMER. The vast majority of President Bush’s nominees have been hard, hard right. And again, that we know has happened. 

But I want to ask the panel, the four more conservative, if—let 

us just assume that a President is making ideological choices and 

is nominating people without fail who are way over to one side—

it could be far left or far right—should the Congress question them, 

should the Senate question them on their views? Should the Senate 

use ideology as a test, or should the President basically get his way 

as long as the nominees are regarded as good legal thinkers and 

have no moral opprobrium in any way attached to them? 

Mr. FEIN. Mr. Senator, that was practiced under Franklin Delano Roosevelt. After his court-packing plan failed, he nominated all 

hard New Dealers, those who supported his court-packing plan. 

The Senate confirmed every, single one, and— 

Senator SCHUMER. Well, I am asking you your view—is that 

right? 

Mr. FEIN. And I believe that was correct. 

Senator SCHUMER. You do. 

Mr. FEIN. I believe the President won the election overwhelmingly over Alf Landon. That was the rules of the game. The people 

knew— 

Senator SCHUMER. Sort of the way Bush won over Gore overwhelmingly? 

Mr. FEIN. —no, no—and he campaigned as you well know in 

1936 against Justices who said we are taking a buggy-horse approach to interpreting the Constitution. And the Constitution did 

not collapse. It thrived. And I do not know that anyone views the 

Roosevelt appointees as being the waystation for the destruction of 

our constitutional system. 

55

Senator SCHUMER. Go ahead, Marcia—so you would think that 

that is fine, and if President Roosevelt—let us just assume it—did 

all New Dealers—and I would argue that the New Deal, it was 

more in the consensus of America post–1938 than Scalia and 

Thomas are within the consensus of America in 2002, and the 

President has said those are the types of judges he wants— 

Mr. FEIN. Scalia was confirmed unanimously. 

Senator SCHUMER. I understand. That is not the point. 

Mr. FEIN. But he is an extremist, and he got a unanimous vote? 

Senator SCHUMER. Well, he got a unanimous vote because then 

the Court probably needed some balance. I would have voted for a 

Scalia if there were eight Brennans on the Court. I would not 

vote— 

Mr. FEIN. No, there were not eight Brennans at the time. The 

Chief Justice was Mr. Rehnquist. 

Senator SCHUMER. I understand. I am just making the point—

I am asking you the question—you are not answering; you are giving other facts like the unanimous approval—so let me just finish 

with Mr. Fein. 

So you are saying that if a President nominates people to one extreme—let us assume your argument that Roosevelt did—that the 

Senate should not inquire about their judicial philosophy, their ideological views, and just appoint the President’s nominees, or you 

are not saying that? 

Mr. FEIN. No, I am not saying that. I think the Senate— 

Senator SCHUMER. Okay. Let me just ask you some questions. Do 

you think it is legitimate to make such inquiry? 

Mr. FEIN. I think it is legitimate to make an inquiry so that the 

people can hold the President accountable and know exactly what 

kind of Justices he is nominating; absolutely. 

Senator SCHUMER. Okay. 

Does everyone else agree with that? 

Mr. CALABRESI. I think it is legitimate for Senators to take ideology into account, but I do not think it is legitimate to filibuster 

nominees who clearly enjoy the support of a majority of the Senate, 

and I do not think there is any precedent for that in 214 years of 

American history. 

Ms. GREENBERGER. Well, I have to say that that is absolutely factually inaccurate. 

Senator SCHUMER. Of course it is. 

Ms. GREENBERGER. And with respect to Paez and Berzon, Senator Schumer, whom you raised, there was a filibuster. Let us step 

back for a minute and remember that President Clinton was not 

even sending up names that he did not think were going to get 60 

votes to start with, so the whole universe was not as controversial 

a universe to begin with. With respect to now judges Paez and 

Berzon, when there was a filibuster—and to go back, Senator 

Cornyn, to your point—there was a filibuster, it was on ideology. 

There are statements of the leader of the filibuster, then—Senator 

Smith; it was all about ideology. Senator Frist voted against invoking cloture. 

Chairman CORNYN. If they were confirmed, how can you say 

there was a successful filibuster? 

56

Ms. GREENBERGER. I did not say it was a successful filibuster, 

but I did say— 

Senator SCHUMER. How long did it take to confirm them? 

Ms. GREENBERGER. With respect to Judge Paez, it was over 3 

years from start to finish, and with respect to Judge Berzon, it was 

a slightly shorter period of time. But still— 

Senator SCHUMER. So in other words, Ms. Greenberger, if we 

were using the precedent, then Senator Cornyn and our friends on 

the other side should be estopped from complaining until it is 3 

years—they are complaining when it is 3 months. 

Ms. GREENBERGER. I just said the current leader of the Senate, 

Senator Frist, voted against invoking cloture in that context with 

respect to Judge Paez, and therefore, his whole approach was not 

consonant, Senator Cornyn, with what you were suggesting, that if 

there were a majority willing to confirm, there should not be a filibuster. He continued to support a filibuster, and the ultimate vote 

showed a very overwhelmingly strong vote to confirm for both. 

So the leadership of the Senate currently, just a very short period of time ago, clearly was taking a different ideological and philosophical view about the rules of filibuster, how they apply with respect to lifetime appointments, with respect to judicial appointments, with respect to circumstances where it was obvious from the 

beginning that those nominees had substantial majority support, 

far more substantial majority support than some of the judges who 

I must say I do not congratulate the Senate for confirming, such 

as Judge Shedd, Judge Sutton, and others who have very, very 

strong negative votes. 

Senator SCHUMER. Okay. I have a question of Professor 

Gerhardt. I am sort of befuddled again. It seems to me this is: Here 

is the result we want, and therefore we are making an argument 

for it. 

In other words, I think the panel sort of buttresses my argument 

that we do not have this neutral machine that makes law. This 

panel is great proof of it. 

But I am totally befuddled by the idea that it is unconstitutional 

to filibuster a judge but not unconstitutional to filibuster legislation. I would also like to know if there is any difference between—

couldn’t committees be unconstitutional? If a majority on a Committee decided to vote against a judge, is that okay? 

And I ask the second question to all the panel: If, then, the whole 

Senate wanted to be for the nominee and there were a majority 

vote there. 

So, first, Professor Gerhardt. This is taking the results you want 

and twisting the legal argument to make it right. It is the most absurd thing I have ever seen, and I think it is almost a joke. Do you 

see any difference between the unconstitutionality? Why is majority vote more sacred in judicial appointment than in legislation? 

Mr. GERHARDT. I do not think there is. I do not think the Constitution recognizes any such distinction. In fact, as I suggested 

earlier, there is only one Appointments Clause. Every nomination 

would have to be the beneficiary of this rule if it were to apply. 

Senator SCHUMER. That is even a better argument, thank you. 

That is why you are the professor and I am the Senator. 

Mr. GERHARDT. Thank you. 

57

Senator SCHUMER. Appointment to the executive branch—by the 

way, I missed some of this—are the people who are for this arguing 

that a filibuster and appointment to the executive branch would be 

equally unconstitutional? 

Mr. FEIN. Mr. Senator, I do not think that it makes any sense 

to try to apply necessarily the same rule to all appointments or all 

votes. I pointed out earlier that intellectual tidiness is not the earmark of the way our Constitution has been interpreted and applied. You have to ask what is the purpose of the voting rule and 

whether it is consistent with the spirit and design of the Constitutional architects. 

With regard to legislation, everyone knows the Founding Fathers 

were worried about a hurricane of legislation. They were erecting 

barrier after barrier to prevent legislation from being enacted. So 

you can argue reasonably plausibly that a supermajority vote that 

tries to block legislation is consistent with that design. 

There is nothing comparable with regard to concern over appointing and confirming judges too fast with majority votes or otherwise. 

So it is thoroughly consistent to say that a filibuster rule can be 

overridden by a simple Senate majority on judges, but not on legislation. 

Senator SCHUMER. Didn’t the Founding Fathers, in objection to 

Wilson’s proposal that the President choose the judiciary, say that 

they were worried that the President would have too much power, 

and isn’t that in the same spirit? They did not say 51 is enough 

to check the President’s power in this, but 41 is not. 

Mr. FEIN. No. I do not think the Founding Fathers— 

Senator SCHUMER. You are not being a very strict constructionist 

here, Mr. Fein. 

Mr. FEIN. Right. No, I am not trying. I do not think you will find 

answers— 

Senator SCHUMER. I know you are not trying. 

Mr. FEIN. —to the constitutional questions that are difficult by 

reading a dictionary and looking only at the text, because the Constitution has additional elements that have to be consulted if it is 

to have any vibrancy; otherwise the Constitution would be 30,000 

pages long to get into all the detail that you have adverted to. 

Senator SCHUMER. You are not being a very strict constructionist, though, are you? 

Mr. FEIN. I will not be a strict constructionist when I think it 

serves the goals of the Constitution. I am not embarrassed about 

that. And we should not be fetish about particular slogans. 

With regard to the constitutional role of the Senate—

Senator Schumer. We will quote you on that at some other hearing sooner or later. 

[Laughter.] 

Mr. FEIN. Any time you want. 

I testified, by the way, in favor of your proposal to have sentence 

enhancements for hate crime statutes. Maybe you were more endearing to me at that time than now. 

[Laughter.] 

Senator SCHUMER. I do not know where I went wrong before. 

Mr. FEIN. Well, that makes two of us. 

[Laughter.] 

58

Mr. FEIN. With regard to the entrustment to the Senate of a confirmation role, there was no suggestion in the Federalist papers 

that a majority was not sufficient to perform the task of weeding 

out for cronyism, incompetence, or corruption. I think that is where 

the explanation comes as to why the President was not given the 

sole power. Hamilton explains that in 76 of Federalist Papers. 

Mr. EASTMAN. In fact, Senator, the debate went even further. 

James Madison had proposed at one point to actually require a 

two-thirds vote to disapprove a Presidential nomination. That did 

not succeed. But the vote was not to go the other direction but in 

fact whether to give exclusive power to the President or to have 

some other check. 

The notion that a minority of the Senate would be sufficient to 

stop a Presidential nominee and that that could be locked into 

place forevermore through a Senate rule—and I will just quote 

Erwin Chemerinsky— 

Senator SCHUMER. Well, it is not forevermore. The Senate can 

chance its rules in a minute. 

Mr. EASTMAN. But that is what the fight is about. And the constitutionality of the supermajority two-thirds requirement in the 

Senate rule to stop the change of the filibuster rule—and I will 

quote Erwin Chemerinsky; I have been debating him every week 

for 3 years— 

Senator SCHUMER. Who is that? I did not hear. 

Mr. EASTMAN. —and we have agree on hardly anything, and on 

this we agree—entrenchment of the filibuster violates a fundamental constitutional principle. One legislature cannot bind subsequent legislatures. And if this body does not take that seriously—

he goes further in that same article to suggest that disgruntled 

nominees or Members of the Senate themselves whose votes are diluted by that unconstitutional rule could file suit and— 

Senator SCHUMER. How about committees? How about when a 

Committee blocks a judge from coming to the floor? Let us say the 

Judiciary Committee votes 15 to 4 against letting someone coming 

to the floor, and 51 Senators sign a letter saying bring that judge 

to the floor. Is that unconstitutional? 

Mr. CALABRESI. There is no question that committees are constitutional. First of all, the British Parliament had committees. The 

Framers were aware of that when they passed the Rules of Proceedings Clause. They clearly authorized Congress to set up committees and to set up rules that would structure deliberation and 

debate. 

The filibuster itself— 

Senator SCHUMER. Why isn’t Mr. Fein’s argument, which is sort 

of results-oriented, that this is what the Founding Fathers were 

looking for, apply equally to committees despite what the British 

Parliament did? 

Mr. KMIEC. A majority of the Senate— 

Mr. CALABRESI. Because the Rules of Proceedings Clause— 

Senator SCHUMER. Let Professor Calabresi finish, and then I will 

call on you, Dean Kmiec. 

Mr. CALABRESI. The Rules of Proceedings Clause authorizes Congress to set up committees and to set up rules of that kind. The 

filibuster of legislation— 

59

Senator SCHUMER. Well, no—wait a second, Professor. It authorizes committees, and it authorizes rules, okay? It does not say that 

the committees come from any different genesis than rules. But 

you are saying the rules are unconstitutional, but the committees 

are not, even though the formulation of each is majority should 

rule. It makes no sense. 

Mr. CALABRESI. Rules which foster deliberation and debate are 

perfectly permissible. 

Senator SCHUMER. Wait a second— 

Mr. CALABRESI. A rule which actually changes the voting outcome, which raises the threshold from 51 to 60 votes to be confirmed to an office, is not constitutional and represents a major extension of the filibuster. 

We have had the legislative— 

Senator SCHUMER. Wait a second, Professor Calabresi. Then, 

what you should be saying is—just to be logical here instead of just 

being totally outcome-determinative—is, then, that committees 

should be allowed to debate but not block someone from coming to 

the floor, that it should be a recommendation, because you said 

rules of debate are okay but not rules that block. A 15 to 4 vote 

in this Committee will prevent a judicial candidate from getting a 

majority vote on the floor of the Senate. I do not see any difference. 

And here you are, coming up with a construct that seems to be almost, with all due respect, made out of thin air, because you want 

to defend one, and you do not want to defend the other. 

My guess—and you will disagree—is that if the Committee 

blocked it, and good Senator Cornyn came in and said committees 

blocking nominees is unconstitutional, you would be making exactly the opposite argument. 

Go ahead. 

Mr. KMIEC. In all fairness, Senator, I do not think anyone is saying that the Committee structure is unconstitutional. I do not think 

anyone made an argument here this afternoon that the filibuster 

was unconstitutional. 

I think the argument that has been made—and there may not 

be a consensus here, but there is in fact a good body of Supreme 

Court opinion and not just the commentaries of William Blackstone—that one previous Senate cannot impose rules on a subsequent Senate without giving that subsequent Senate and a majority of that subsequent Senate, including new Members such as the 

Chairman of our Subcommittee this afternoon, the opportunity to 

pass upon those rules. 

There is a continuing constitutional injury. It is an injury not 

just to the Subcommittee chairman; it is an injury to the nominees 

who the President has put forward, and that is an injury to the 

separation of powers—and frankly, there is an injury to the people 

who elected the new members of the Senate who are part of this 

body, because part of the whole process of the democratic system 

is accountability. 

Senator SCHUMER. So, Dean Kmiec, you are saying that each rule 

is illegitimate if it is passed on from one Senate to the next regardless. 

Mr. KMIEC. That is correct. 

60

Senator SCHUMER. Okay. So you are not particularly holding the 

filibuster rule to be any worse than the rule on committees or the 

rule on this or the rule on that. And yet if this Senate were just 

to ratify its existing rules every 2 years, which I think we did in 

the House— 

Mr. KMIEC. In the House, you did; in the House, you did. 

Senator SCHUMER. —then that would be okay? 

Mr. KMIEC. Then you would in my judgment meet the constitutional standard. 

Senator SCHUMER. Okay. Fair enough. 

Mr. KMIEC. But that is where the injury is, and it is an injury 

now that is compounding our present problem. 

And I would just like for a minute to say something in favor of 

consensus which I know is unpopular. Senator Specter was here 

earlier in the afternoon, and he put forward a proposal which he 

called a ‘‘protocol.’’ It is a protocol that I think, if you explained it 

to the American people, they would readily understand. They 

would say what does the Constitution provide? The Constitution 

provides that the President shall nominate, and it provides that 

the Senate shall give its advice and consent. And the people would 

likely ask: how can that be done reasonably and fairly within a reasonable period of time? 

What Senator Specter’s protocol is about is putting that framework in place, getting beyond the blame game. We both can do 

numbers. We can do our separate table of end-run numbers as to 

who did the worst injury in terms of denying hearings or defeating 

candidates within the committee. 

The real constitutional injury here is failing to act within a reasonable time whoever is in the Presidential office and the constitutional injury that we have just talked about, and that is the entrenchment of rules being imposed from one body onto the next. 

Senator SCHUMER. Which could be changed by majority vote. 

Mr. KMIEC. And should be changed by majority vote in order to— 

Senator SCHUMER. Right. That is why—I do not know why you 

say ‘‘imposed,’’ because then it has gone along with the doing-ness, 

and the 51 Senators of the majority could propose changes in the 

rules. 

Mr. KMIEC. And right now, it is being manipulated—they could 

and they should, and Lloyd Cutler, the former White House counsel 

to President Carter, proposed just that. And I think one of the salutary things that could come out of this afternoon’s hearing is if the 

transcript from this hearing would be given over to the Senate 

Rules Committee and indeed a change in Rule XXII would be proposed, because that would be the beginning of healing of a process 

for a system that is in fact broken. 

Ms. GREENBERGER. Could I just make sure there is no idea of 

consensus on that? 

Chairman CORNYN. Let me—no—excuse me, excuse me, excuse 

me. I have the floor. 

Senator Schumer, I wanted to inquire about how much more you 

have. We have been doing 10-minute rounds, and I have given you 

20 minutes— 

Senator SCHUMER. I was going to let Ms. Greenberger—sorry. I 

apologize. 

61

Chairman CORNYN. —and I want to give you plenty of time— 

Senator SCHUMER. I will let Ms. Greenberger make the last comment from my round of questions. 

Chairman CORNYN. That is fine. Thank you very much. 

Ms. GREENBERGER. Very quickly, of course, the nub of the controversy here is that this particular Senate rule requires a twothirds vote to change it, not a majority vote to change it. So it 

would be changing the rules in a way that was inconsistent with 

the rules after the game, and that is the missing piece, I think, of 

the suggestion that makes it such a controversial suggestion and 

one that neither Professor Gerhardt nor I could support when we 

discussed it before. 

Mr. KMIEC. It was not controversial for Lloyd Cutler, and it is 

not controversial for me. 

Ms. GREENBERGER. Well, that may be. I cannot speak— 

Senator SCHUMER. It is to me, because it basically says the President gets whatever he wants; it is not a compromise. You just wait 

a few months, and he gets it. 

Chairman CORNYN. Very well. That was the last question and 

comment, and with that, I would like to thank all of the distinguished lawyers and scholars who comprise this panel as well as 

the preceding panel of my colleagues, our colleagues, in the Senate. 

I think we have all found this fruitful, and certainly important 

constitutional questions and issues have been raised and debated, 

and I was not laboring under the hope, or actually, the expectation—maybe the hope, but not the expectation—that we would finally settle that today. 

I want to make sure that I express my gratitude first to Senator 

Hatch for his leadership on the Senate Judiciary Committee. I do 

not think, regardless of who leads as Chairman of the Judiciary 

Committee, it is ever an easy job. I think I remember Senator 

Biden saying he is sure glad that he is no longer Chairman of the 

Judiciary Committee. But I believe we owe Chairman Hatch a debt 

of gratitude for his leadership and for leading us through difficult 

times for the committee. 

I would like to express my gratitude to the staff who have helped 

us get ready for this hearing, including the staff of Senator Feingold, and all those who have worked so hard to try to allow us to 

tee-up the important questions that we have addressed here today. 

I know that we will have more hearings, and we will continue 

to have debate about this and other important questions facing our 

Nation, particularly as they regard the Constitution, as Senator 

Feingold alluded to earlier and as I alluded to earlier. 

And I look forward to future successful hearings and bipartisan 

cooperation. This is one of the few hearings that I think we have 

ended where everybody sort of had a smile on their faces. 

Senator SCHUMER. Oh, yes. And I want to thank the witnesses. 

They have been here for a long time. 

Chairman CORNYN. Absolutely. 

Senator SCHUMER. I consider this fun; I hope you do. 

Chairman CORNYN. And with that, this hearing of the Senate 

Subcommittee on the Constitution, Civil Rights, and Property 

Rights is hereby adjourned. 

[Whereupon, at 6:01 p.m., the Subcommittee was adjourned.] 

62

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

63


90460.326
64


90460.327
65


90460.328
66


90460.329
67


90460.330
68


90460.331
69


90460.002
70


90460.003
71


90460.004
72


90460.005
73


90460.006
74


90460.007
75


90460.008
76


90460.009
77


90460.010
78


90460.011
79


90460.012
80


90460.013
81


90460.014
82


90460.015
83


90460.016
84


90460.017
85


90460.018
86


90460.019
87


90460.020
88


90460.021
89


90460.022
90


90460.023
91


90460.024
92


90460.025
93


90460.026
94


90460.027
95


90460.028
96


90460.029
97


90460.030
98


90460.031
99


90460.032
100


90460.033
101


90460.034
102


90460.035
103


90460.036
104


90460.037
105


90460.038
106


90460.039
107


90460.040
108


90460.041
109


90460.042
110


90460.043
111


90460.044
112


90460.045
113


90460.046
114


90460.047
115


90460.048
116


90460.049
117


90460.050
118


90460.051
119


90460.052
120


90460.053
121


90460.054
122


90460.055
123


90460.056
124


90460.057
125


90460.058
126


90460.059
127


90460.060
128


90460.061
129


90460.062
130


90460.063
131


90460.064
132


90460.065
133


90460.066
134


90460.067
135


90460.068
136


90460.069
137


90460.070
138


90460.071
139


90460.072
140


90460.073
141


90460.074
142


90460.075
143


90460.076
144


90460.077
145


90460.078
146


90460.079
147


90460.080
148


90460.081
149


90460.082
150


90460.083
151


90460.084
152


90460.085
153


90460.086
154


90460.092
155


90460.093
156


90460.094
157


90460.095
158


90460.096
159


90460.097
160


90460.098
161


90460.099
162


90460.100
163


90460.101
164


90460.102
165


90460.103
166


90460.104
167


90460.105
168


90460.106
169


90460.107
170


90460.108
171


90460.109
172


90460.110
173


90460.111
174


90460.112
175


90460.113
176


90460.114
177


90460.115
178


90460.116
179


90460.117
180


90460.118
181


90460.119
182


90460.120
183


90460.121
184


90460.122
185


90460.123
186


90460.124
187


90460.125
188


90460.126
189


90460.127
190


90460.128
191


90460.129
192


90460.130
193


90460.131
194


90460.132
195


90460.154
196


90460.087
197


90460.088
198


90460.089
199


90460.090
200


90460.091
201


90460.135
202


90460.136
203


90460.137
204


90460.138
205


90460.139
206


90460.140
207


90460.141
208


90460.142
209


90460.143
210


90460.144
211


90460.145
212


90460.146
213


90460.147
214


90460.148
215


90460.149
216


90460.150
217


90460.151
218


90460.152
219


90460.153
220


90460.332
221


90460.333
222


90460.334
223


90460.335
224


90460.336
225


90460.337
226


90460.155
227


90460.156
228


90460.157
229


90460.158
230


90460.159
231


90460.160
232


90460.161
233


90460.162
234


90460.163
235


90460.164
236


90460.165
237


90460.166
238


90460.167
239


90460.168
240


90460.169
241


90460.170
242


90460.171
243


90460.172
244


90460.173
245


90460.174
246


90460.175
247


90460.176
248


90460.177
249


90460.178
250


90460.179
251


90460.180
252


90460.181
253


90460.182
254


90460.183
255


90460.184
256


90460.185
257


90460.186
258


90460.187
259


90460.188
260


90460.189
261


90460.190
262


90460.191
263


90460.192
264


90460.193
265


90460.194
266


90460.195
267


90460.196
268


90460.197
269


90460.198
270


90460.199
271


90460.200
272


90460.201
273


90460.202
274


90460.203
275


90460.204
276


90460.205
277


90460.206
278


90460.207
279


90460.208
280


90460.209
281


90460.210
282


90460.211
283


90460.212
284


90460.213
285


90460.214
286


90460.215
287


90460.216
288


90460.217
289


90460.218
290


90460.219
291


90460.220
292


90460.221
293


90460.222
294


90460.223
295


90460.227
296


90460.228
297


90460.229
298


90460.230
299


90460.231
300


90460.232
301


90460.233
302


90460.234
303


90460.235
304


90460.236
305


90460.237
306


90460.238
307


90460.239
308


90460.240
309


90460.241
310


90460.242
311


90460.243
312


90460.244
313


90460.245
314


90460.246
315


90460.247
316


90460.248
317


90460.249
318


90460.250
319


90460.251
320


90460.252
321


90460.253
322


90460.254
323


90460.255
324


90460.256
325


90460.257
326


90460.258
327


90460.259
328


90460.260
329


90460.261
330


90460.262
331


90460.263
332


90460.264
333


90460.265
334


90460.266
335


90460.267
336


90460.268
337


90460.269
338


90460.270
339


90460.271
340


90460.272
341


90460.273
342


90460.274
343


90460.275
344


90460.276
345


90460.277
346


90460.278
347


90460.279
348


90460.280
349


90460.281
350


90460.282
351


90460.283
352


90460.284
353


90460.285
354


90460.286
355


90460.287
356


90460.288
357


90460.289
358


90460.290
359


90460.291
360


90460.292
361


90460.293
362


90460.294
363


90460.295
364


90460.296
365


90460.297
366


90460.298
367


90460.299
368


90460.300
369


90460.301
370


90460.302
371


90460.303
372


90460.304
373


90460.305
374


90460.306
375


90460.307
376


90460.308
377


90460.309
378


90460.310
379


90460.311
380


90460.312
381


90460.313
382


90460.314
383


90460.315
384


90460.316
385


90460.317
386


90460.318
387


90460.319
388


90460.320
389


90460.321
390


90460.322
391


90460.323
392


90460.324
393

Æ


90460.325