Senator Cornyn vs. the Times

Two major newspapers have recently published editorials in favor of the filibuster, as used against Bush's judicial nominees. Senator John Cornyn has written letters in response to each one. Neither paper published the letters. Nor has anyone else published them, to my knowledge.

First, the New York Times' editorial:

The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.

Senator Cornyn's response:

November 29, 2004
Letter to the Editor:

I read with great surprise Sunday’s editorial praising the filibuster as a worthy obstructionist tactic in the United States Senate [Mr. Smith Goes Under the Gavel, November 28, 2004]. After all, it wasn’t long ago that the Times advocated just the opposite.

On January 1, 1995, the Times editorialized that it was “Time to Retire the Filibuster,” describing the tactic as “the tool of the sore loser” and “an archaic rule that frustrates democracy and serves no useful purpose.” Have times changed – or has the Times changed?

But beyond the contradictory statements, Sunday’s editorial also misreads history. In more than two centuries of Senate tradition, whenever a judicial nominee received the support of a majority of Senators, that nominee was confirmed. None have been blocked by a filibuster — until now. The current use of the filibusters is as unprecedented as it is wrong. The Senate Democratic leadership have already conceded this – indeed, they have boasted about their “unprecedented” tactics.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

The Times cheered previous attempts at limiting the use of filibusters. Why, then, the change of tune?


John Cornyn
United States Senator

Then the Los Angeles Times published this op-ed by law professors Michael Gerhardt and Erwin Chemerinsky, in which they claim that "[t]he GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate."


Senator Cornyn's response:

December 6, 2004
Letter to the Editor:

An op-ed in Sunday’s Times by two law professors, Erwin Chemerinsky and Michael Gerhardt, praised the use of filibusters to prevent the confirmation of federal judges, and criticized efforts to reform its unprecedented use against nominees [“Senate's 'Nuclear Option'”]. Their own academic writings, however, contradict those views.

These two professors have previously expressed opposite views on the subject. In 2000, Professor Gerhardt published a book critical of supermajority requirements to confirm judges, stating that such rules “would be more likely to frustrate rather than facilitate the making of meritorious appointments” and are “hard to reconcile” with the Constitution, which “required a simple majority for confirmations to balance the demands of relatively efficient staffing of the government.”

Likewise, Professor Chemerinsky has previously written that the filibuster rules can be changed by a majority vote – the very tactic that he now derides as a “nuclear” option. In a 1997 Stanford Law Review article, the professor wrote that the filibuster rule “is unconstitutional,” and that “a majority of this Senate could eliminate the filibuster if a majority wished to do so.”

Throughout two centuries of Senate tradition, whenever a judicial nominee receives the support of a majority of Senators, that nominee is confirmed. None have ever been blocked by a filibuster — until now. The Senate Democratic leadership has already conceded this – indeed, they have boasted about their “unprecedented” tactics to impose supermajority requirements on judicial nominees.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

John Cornyn
United States Senator

UPDATE: As a commenter points out, the LA Times did print Cornyn's letter Saturday. Here's the edited version that was printed:

Chemerinsky and Gerhardt praised the use of filibusters to prevent the confirmation of federal judges and criticized efforts to reform its unprecedented use against nominees. Their own academic writings, however, contradict those views. In 2000, Gerhardt published a book critical of super-majority requirements to confirm judges, stating that such rules "would be more likely to frustrate rather than facilitate the making of meritorious appointments" and are "hard to reconcile" with the Constitution. Likewise, Chemerinsky has previously written that the filibuster rules can be changed by a majority vote — the very tactic that he now derides as a "nuclear" option. In a 1997 Stanford Law Review article, he wrote that the filibuster rule "is unconstitutional" and that "a majority of this Senate could eliminate the filibuster if a majority wished to do so."

The filibuster is not sacrosanct. There are dozens of laws on the books that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a president's judicial nominees.

Sen. John Cornyn