Jeff Johnson | Congressional Bureau Chief | Thursday, March 6, 2003
"I think so," said Sen. Jeff Sessions (R-Ala.) when asked if Democrats were "skirting their oath to uphold the Constitution" in blocking a vote by the full Senate.
"I know Sen. [John] Cornyn (R-Texas) and others know the history of it," Sessions elaborated, "James Madison's proposal, which was roundly rejected, to raise the percentage to two-thirds for confirmation of judges, and they voted - the constitutional convention voted it down."
House Constitution Subcommittee Chairman Steve Chabot (R-Ohio) noted that Article II, Section 2 of the Constitution states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court, and all other Officers of the United States." [Chabot's emphasis.]
"If there were any room for doubt regarding the role of the full Senate in confirming the president's judicial nominees," Chabot argued, "Alexander Hamilton in Federalist Paper Number 76 makes clear that the president is 'bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature.'" [Chabot's emphasis.]
The Constitution, in fact, calls for a so-called "super-majority" vote of one or both houses of Congress for only six reasons:
Senate conviction of an official impeached by the House;
Expelling a member of the House or Senate (affected house);
Overturning a presidential veto (both houses);
Proposing constitutional amendments (both houses);
Establishing a quorum for choosing a president in the event of a tie vote in the Electoral College (House, Senate added for the Vice President by the Twelfth Amendment); and
Ratifying treaties (Senate).
The same portion of Article II, Section 2 that applies a two-thirds majority vote requirement to Senate ratification of treaties gives Senators confirmation power over judicial nominees. But the two-thirds majority requirement is not applied to confirmation votes, even though they are mentioned later in the same sentence.
Cornyn, a freshman Republican, chairs the Constitution subcommittee in the Senate.
"If indeed the bar will be raised to 60 votes for judicial confirmation, we know there will be an equal and opposite reaction when there is a Democrat in the White House, and we believe that's wrong; regardless of who's in the White House, the Constitution should not change," Cornyn argued. "And the Constitution clearly requires 'a majority of senators' to vote on a judicial nomination to provide 'advice and consent.' And that is what is not happening now."
Democrats: Estrada Refused to Answer Questions, Denied Access to Papers
Cornyn pointed out that all 51 Senate Republicans and at least four Democrats have pledged their support for Estrada.
"A minority of Democrats are blocking a bipartisan majority of the United States Senate from voting today on the confirmation of Miguel Estrada and, if we were allowed to vote today, he would be confirmed," Cornyn said. "It's just as simple as that, and they know it."
But Sen. Charles Schumer (D-N.Y.) argued Tuesday that Republicans, not he and his colleagues, are to blame for delaying a vote on Estrada's nomination.
"All we want from Miguel Estrada is some answers to questions and some papers, which they could have sent months ago," Schumer said on the Senate floor. "In my judgment, it is clear they do not want these questions answered. They do not even want them asked."
Responding to Schumer's complaint, Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) came to the Senate floor to assuage the New York Democrat's concerns.
"Is it possible [Sen. Schumer] could put together the questions he believes Miguel Estrada has not answered appropriately, and I will do my best to get him to answer them?" Hatch asked. "I would be glad to assist the Senator if he will give me a list of questions the Senator would like to have Miguel Estrada answer. I will do my best to see he answers them for the Senator, and hopefully, that will have the Senator feel a little bit better and cause him to vote for him."
Schumer refused the offer, instead demanding that Estrada - whose confirmation has already been passed by the Judiciary Committee - be brought back to the committee for another hearing.
Democrats Submitted No Additional Questions
C. Boyden Gray was responsible for coordinating President George H.W. Bush's judicial nominees and now chairs the Committee for Justice, a group formed to support the current President Bush's nominees. He said Wednesday that Democrats' continued demands to be able to ask Estrada more questions ring hollow because they refused "an open invitation from the White House" to submit more questions.
"Their failure to submit even a single question to Estrada exposes their scheme: This filibuster has nothing to do with 'exploring Mr. Estrada's temperament or credentials,'" Gray argued. "It is a political black-listing to prevent a conservative Hispanic from climbing to the nation's second highest court."
Gray made public a letter sent by 57 members of the House, criticizing the Senate Democrats' demands for access to privileged documents Estrada wrote while he was assistant solicitor general.
"As you are no doubt aware, the Clinton administration memoranda you are requesting in the case of Mr. Estrada were not requested for the seven previous nominees to the Courts of Appeals who had worked in the Solicitor General's office," the House lawmakers wrote. "Understandably, the improper appearance of a double standard for this particular nominee has been created."
The letter also challenged Senate Minority Leader Tom Daschle (D-S.D.), Sen. Judiciary Committee Ranking Member Patrick Leahy and other Senate Democrats on the lack of a legal precedent for their request.
"Your objection to the administration's refusal to produce these memoranda not only breaks with precedent," the letter states, "but is also a threat to the ability of Executive Branch officials, members of the Judiciary and members of Congress to receive confidential legal advice."
In addition to the administration's objections to waiving attorney-client privilege to release Estrada's writings, every living former Solicitor General of the United States, both Democrats and Republicans, signed a letter to the Senate Judiciary Committee warning that releasing the memos would reduce the ability of the Justice Department to effectively represent the U.S. government in front of the Supreme Court.
Frist Warns: 'This Is the Beginning of the Battle' over Estrada
Senate Majority Leader Bill Frist (R-Tenn.) announced Tuesday that he will file a cloture motion to end the Democrats' filibuster of the Estrada confirmation vote. The move is not expected to overcome the Democrats' efforts but is rather believed to be a signal of an escalation in Republicans' efforts to force a confirmation vote.
"I want to make it very clear," Frist said Tuesday, "that this is the beginning of the battle."
Frist promised that he would continue to call cloture votes on the Estrada confirmation until the tactic worked.
"We are going to see that this nominee has an up-or-down vote," Frist said. "I'm going to...use every tool I possibly can."
What will likely be the first of several cloture votes will take place Thursday.
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