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Sen. Cornyn: Dems Haven’t Ruled Out Alito Filibuster

Says GOP might not have votes to go nuclear

Sen. John Cornyn (R.-Tex.), a member of the Judiciary Committee and close ally of the Bush Administration, spoke to the editors of HUMAN EVENTS last Friday about the upcoming hearings for Supreme Court nominee Samuel Alito and the impending debate over immigration reform.

Below is the first of two parts of the interview. Today we cover the Alito nomination, including the possibility of a filibuster, Alito’s take on religious freedom and his similarities to Chief Justice John Roberts. Check back tomorrow for Cornyn’s perspective on immigration reform, including his view on the President’s newfound emphasis on securing the border.


Following his meeting with Judge Alito, Sen. Ken Salazar, a member of the so-called “Gang of 14,” said he had not totally closed his mind to the idea of a filibuster. Do you think there’s any chance that the Democrats might try to launch a filibuster?

SEN. JOHN CORNYN (R.-TEX.): I think it’s very small, but I think it exists. I was kind of mystified by some of Sen. Salazar’s reasoning. It had to do with his apprehension on Judge Alito’s position on quotas, and Sen. Salazar’s suggesting there was something wrong with being opposed to quotas. But Salazar himself had previously stated his opposition to quotas. There’s some inconsistency there, and it’s hard to read.

Sen. John Cornyn (R.-Tex.)

With all the red-state Democrats and given the outstanding nature of Judge Alito’s qualifications, and frankly, Sen. [Arlen] Specter’s—and I know the White House is frustrated with his timeline—taking the procedural arguments off the table means all we need to focus on is judicial philosophy. And when it comes to that, we win.

Do you think were the Democrats to try to filibuster, that there’s no question the Republicans would change the rules and end the judicial filibuster?

CORNYN: I don’t have complete confidence in the Republicans’ willingness to go to the constitutional option. I have no apprehension at all. I think if necessary, we should. But with the Senate, it’s just the nature of the institution that people are reluctant to take the hard, decisive action. I’m not exactly sure why that is, other than maybe the fear that if the shoe were on the other foot, maybe the majority would somehow further limit the power of the minority. And we may be in the minority tomorrow.

Is it true that as long as you have Sen. Mike DeWine of Ohio and Sen. Lindsey Graham of South Carolina back on board that the vote count gives you 50 votes for the constitutional option?

CORNYN: My sincere hope is that if push came to shove, we would have it. But I’m not absolutely sure of that. I think Sen. DeWine and Sen. Graham experienced a blowback from their participation in the Gang of 14. I must say that while I was very skeptical of the Gang of 14, and I don’t really like the idea of a rump group within the Senate trying to be the determiners of whether judges get confirmed or not, I can say this good about it: They did appear to deflate things when everyone was puffed up and ready to fight. And we got six circuit court judges confirmed and John Roberts confirmed. Now, I think it’s a lot harder for the other side to build up to that kind of confrontational position, which would necessitate the constitutional option. I think it’s going to be really hard for them to demonize Alito enough to get a filibuster.

When you met with Judge Alito, there was a very interesting article in the New York Times, which quoted you and Sen. Robert Byrd, both indicating that he had been very candid about Supreme Court decisions involving the establishment clause and freedom of religion. I know from his record on the appeals court, where precedent would allow it, he is very aggressive in protecting freedom of religion. For example, there was the Jersey City case involving display of religious symbols on public property. Did you discover this man is more candid than your typical nominee?

CORNYN: The New York Times may have, as usual, overstated what happened, at least in my case. I did talk to Judge Alito about this issue, because I care a lot about it. I personally believe the Supreme Court’s jurisprudence in this area is chaotic and contradictory. What that does in the end, that doesn’t translate into neutrality, where I think we should be, but rather to hostility. Because what municipality, what government body is going to risk litigation with that expense. So what they end up doing is forgoing that religious expression in a way that I think disadvantages religious speech.

Did Alito tell you he thought the court showed hostility to religious expression?

CORNYN: Those were my words, and I don’t remember the precise words he used, but from what I remember reading of his decisions—I think I used the word commiserated. He commiserated with me on that. I sensed some empathy, but I wasn’t asking for commitments and precise outcomes. But I did get the distinct impression that he agreed with me that Supreme Court’s jurisprudence was a problem. And I expressed my hope that he could help them find a way out of the thicket.

Why does Sen. Dianne Feinstein seem to be very impressed with him, particularly on the issue of Roe v. Wade? She seemed to his the assurance to her that he would not overturn Roe v. Wade. Did he ever give that kind of impression to you?

CORNYN: I would be surprised if he said anything to give anyone a clear statement about that. It’s interesting, as a former judge myself, I have more than a layman’s appreciation of stare decisis. And, as we all know, whether you’re a lawyer or judge or not, stare decisis is not an impenetrable or insurmountable obstacle to revisiting previous decision or else we’d still be living with Plessy v. Ferguson. What John Roberts said during his confirmation hearings was that consistent with the principles of stare decisis, Roe v. Wade is entitled to respect.

You thought Roberts’ answer was artful?

CORNYN: I do. And I think that may have been what happened with certain senators—they were hearing the answer they wanted to hear rather than the message that’s being delivered.

Is Alito as great an artist as Roberts?

CORNYN: I think so. I think he’s another John Roberts in terms of his intellect and his ability. Although from a personality standpoint, John Roberts is as good as it gets.

Roberts was, by the way, in the [Senate] majority leader’s office [last Thursday] visiting senators. He was invited by Majority Leader [Bill] Frist to sort of start a new era of relationships between the branches. It’s interesting. We had a chance to ask some questions, and he said the justices regret the contentiousness of the judicial confirmation hearings. I asked him, your honor, the more they’re perceived to be political players, the more people are going to want to have a political process by which they are confirmed. He kind of demurred a little bit on that, but I think the message was sent and received. I think that’s the message they need to understand—that the more federal judges are perceived to be policymakers and another branch of the legislature, the more people are going to want to vote one way or the other and it’ll be more of a political and contentious process.

Given what Judge Alito said in his 1985 job application at the Justice Department, that he personally very strongly believes the Constitution does not protect a right to abortion or ethnic quotas, do you think it would be viable for him to go into the committee and say, “I stand by that. It is my personal view. However, the questions that come before me before the court I cannot address in advance. And secondly, I have this respect for stare decisis.” Would that be a viable strategy for him to take?

CORNYN: I think so. I think that’s what I would expect based on what I know of him. But the press, generally, is so results oriented in interpreting what judges do that they have no appreciation for the process. And law is mainly about process. It is not about results. So what some interpreted by his statement on his job application—that he personally doesn’t believe there’s a right to abortion in the Constitution or words to that effect—does not necessarily translate into, if he’s confirmed, he would so hold as a judge. Because there is the principle of stare decisis and the principle of judicial philosophy that the role of a judge isn’t to impose one’s personal beliefs, but rather to interpret the law and decide cases. If you really have an agenda, you probably shouldn’t be a judge, is my own opinion.

Has anyone ever pointed out that William Rehnquist, when he was an associate justice, wrote one of three very strongly worded dissents from Roe, and then he stood by it in his 1987 confirmation for chief justice? He was, nonetheless, confirmed rather easily. That seems to be very much removed from the statements of John Roberts and what you say now.

CORNYN: I think the fact that they’re circuit judges and they’re obligated to follow the precedent of Roe v. Wade as a circuit judge—whether they agree with it or not—is different from when you’re on the Supreme Court. When you become a member of the court, you then have the liberty to revisit earlier decisions. I’d be a little surprised if he took such an explicit position, but I think believe he would likely be confirmed.

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