Sen. John Cornyn

  • November 2, 2011

    by Jeremy Leaming

    With more than 80 vacancies on the federal bench and courts’ workloads piling up, it is far past time for the U.S. Senate to overcome the rancor surrounding judicial nominations and start confirming judges, two law professors, who have been intimately involved with the federal judicial nominations process, write in a new ACS Issue Brief.  

    In their Issue Brief, UNC School of Law Professor Michael Gerhardt and University of Minnesota Law School Professor Richard Painter write that an effort hatched in 2005 by the so-called “Gang of 14” senators to help avert a crisis over judicial nominations has failed to foster continued cooperation on confirming judges, which in turn has resulted in a high vacancy rate on the federal bench. The professors argue that the plan, which centered on a promise not to filibuster judicial selections “unless there were ‘extraordinary circumstances,’” has not held up well.

    Gerhardt, who helped craft policy for the Clinton administration on the judicial nominations process, and Painter, who served as President George W. Bush’s chief ethics lawyer, explore the origins of the Gang of 14’s agreement on judicial nominations, but call on senators to reach a new accord on ending the ongoing delays of judicial nominations, which have resulted in a sustained high vacancy rate on the federal bench.

    The authors note that Senate leaders, “particularly Republican Members, have long called for reform of the process for confirmation of judicial nominees and an end to the filibuster.” The two cite a 2005 law review article by Texas Sen. John Cornyn who wrote, “It is time to end the blame game, fix the problem, and move on. Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. Unnecessary delay has for too long plagued the Senate’s judicial confirmation process. And filibusters are by far the most virulent form of delay imaginable.”

  • May 31, 2011

    The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

    Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

    But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

    In the 2004 law review piece, as Painter notes, Cornyn wrote:

    Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

    Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

    Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

    He concludes:

    To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

    Visit JudicialNominations.org to get the latest news and commentary on the judicial nominations process.

  • November 17, 2009

    When Attorney General Eric Holder announced that the United States would not abandon the rule of law as to several key Guantanamo detainees, he undoubtedly did so knowing that some observers would be, shall we say, skeptical.

    Some critics of the administration's plan to prosecute international terror suspects in domestic courts are "obsessed with the prospect of allowing these terrorists to have an opportunity to mount a so-called 'circus trial,'" writes Dahlia Lithwick. "They must be awfully afraid of the other side's message to believe that allowing the defendants to utter even a word in their own defense is to risk recruiting millions of new adherents worldwide."

    Perhaps the most colorable argument for fear of prosecuting terrorists in domestic courts is, as Sen. John Cornyn claims, that an acquittal may result. But, explains the Center for American Progress's Ken Gude, "Under the .000001 chance that [suspected terrorists] are acquitted, [the executive branch] will have ... authority to detain them," under the Authorization for Use of Military Force. Adam Serwer expands on the executive branch's authority, observing that, in the off-chance that Khalid Shaikh Mohammed (pictured) is acquitted, "The attorney general could detain him as an 'international terrorist' indefinitely, in renewable six-month periods, based on a provision in the PATRIOT Act."

    Conservatives are not uniformly opposed to prosecuting terror suspects in federal courts, however. In a letter endorsing transferring Guantanamo detainees to a federal prison in Thomson, Ill., former Republican Congressman Bob Barr, David Keene, chairman of the American Conservative Union, and Grover Norquist, president of Americans for Tax Reform, warned of "scaremongering" around the issue of detaining terror suspects domestically. In harmony with the Attorney General's view, Barr, Keene and Norquist concluded, "Civilian federal courts are the proper forum for terrorism cases."