Federal Courts and Nominations

Senator Cornyn and the Filibuster of Judicial Nominees – a Little Historical Revisionism Thrown in With the Hypocrisy

Recently, an editorial in the San Antonio Express-News took Senator John Cornyn (R-TX) to task for indicating that “he will join a GOP effort to filibuster an Obama nominee to a federal bench in Rhode Island.”  That nominee is John McConnell, whose nomination to a trial level federal court in the Ocean State has the strong support of his two home-state Senators, bipartisan support in his home state, and the support of Senator Lindsey Graham, one of Senator Cornyn’s Republican colleagues on the Judiciary Committee.  As we’ve discussed here, it is extraordinary for a District Court nominee with home-state senatorial support to face a filibuster from any Senator, let alone from a Senator who has proclaimed, as Senator Cornyn did during the George W. Bush Administration, that the Constitution “demands” an “up-or-down vote . . . when it comes to the confirmation of the President’s judicial nominees.”

The Constitution has not changed since Senator Cornyn made that speech in 2004, only the party occupying the White House, prompting the Express-News in its recent editorial to decry what it called Senator Cornyn’s “situational ethics on the Senate’s advice and consent powers.”  On April 25, Senator Cornyn fired back with a Letter to the Editor, basically defending his new embrace of the filibuster by saying that because Senate Democrats had filibustered some of President Bush’s nominees, President Obama’s nominees are fair game for the same treatment.  In other words, the senatorial version of an elementary school kid sticking his tongue out at another kid on the playground.

Apart from Senator Cornyn’s “flip-flop” on his own perception of his constitutional obligations, the Senator is a little off in his history, too.  First, Democratic Senators during the Bush Administration hardly invented the filibuster of judicial nominees, as one might think from reading Senator Cornyn’s letter.   (Just ask Clinton nominees Richard Paez and Marsha Berzon, for example.)

Moreover, Senator Cornyn makes it sound as though the Bush Administration ended with the bodies of failed judicial nominees littering the Senate floor.  Not so.  While the Senator is correct that Democrats did invoke the filibuster against a handful of Bush nominees after losing control of the Senate in 2003, he conveniently fails to mention that his party provoked a constitutional crisis over this, threatening to explode the Senate by detonating a procedural stratagem that members of Senator Cornyn’s party dubbed the “nuclear option,” which would have ended filibusters of judicial nominees.

The crisis was averted in 2005 with a deal struck by a bipartisan group of Senators — the “Gang of 14” — that effectively resulted in the adoption of an “extraordinary circumstances” threshold for the filibuster of a judicial nominee.  If there were any precedent set by the Senate during the Bush Administration in connection with the filibuster of judicial nominees as Senator Cornyn’s letter suggests, it was the Gang of 14 deal, which cleared the way for the confirmation of three of President Bush’s most controversial appellate court nominees, not the pre-deal filibusters.  Neither John McConnell nor any of the other Obama nominees currently being blocked by Senate Republicans comes close to satisfying the “extraordinary circumstances” test for invocation of a filibuster established by the Gang of 14.

If Senator Cornyn is going to use historical precedent as a basis for departing from his stated views about the commands of the United States Constitution, he should at least get his history right.


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