Legal Commentary

I would also like to add some materials on Senator John Cornyn of Texas and his considered and presumably principled views on what is appropriate or inappropriate for judicial nominees to be asked, and more broadly how confirmations of Supreme Court Justices should be conducted.  He has written a couple of articles on this issue.

In a 2005 speech reprinted in the Texas Review of Law and Politics titled "Originalism & Judicial Confirmation Hearings," Senator Cornyn wrote to criticize Senator Schumer, about whom I wrote earlier.  He described Schumer as taking the view that the Judiciary Committee is obliged to "require[ ] judicial nominees to tell us during their confirmation hearings how they expect to rule on a list of hot-button political issues," and in which a senator is free to vote down any nominee who gives what that senator considers the wrong answers.  Cornyn wrote that "there are so many problems with this model of confirmation-by-ideological-interrogation that it is difficult to know where to begin countering it."  He said, among other things, that "the confirmation hearing is nearly worthless as a means to learn anything about a judicial nominee," and that "judicial nominees cannot tell us how they will rule in any case that will come before them."  He said nominees cannot be "required to pledge to rule a certain way in a future case" "as the price for their confirmation."  He added that it is deeply unfair to "infer[ ] that a nominee will rule a certain way by virtue of the clients he or she has represented as a lawyer."  

Senator Cornyn expanded on his views in two speeches reprinted in the University of Richmond Law Review.  There, he said that it is "wrong to deny up-or-down votes to judicial nominees simply because a partisan minority of senators cannot persuade the bipartisan majority to vote against a nominee; and wrong not to play fair, follow tradition, and allow a vote."  He made clear that he believes filibusters against judicial nominees are unconstitutional, period.  He made clear that any nominee who enjoys the "support of a majority of senators" should be given an up-or-down vote and, given the numbers, confirmed.  

Similarly, Cornyn said in an article in the same journal that the senate "should consider nominees on the basis of their qualifications and judicial temperament -- and not on the basis of some distorted conception of the political mainstream.  We should examine their commitment to applying the law regardless of their personal beliefs -- and not the actual content of those beliefs.  And we should consider nominees based on the mainstream support of a bipartisan majority of the Senate -- rather than the virulent opposition of a partisan minority of senators."  In the same article, he made clear that "one's personal opinion on abortion (or any other issue) is even less relevant for judicial nominees than for United States senators."  He said that "our Constitution and Senate tradition provide that a majority of senators may confirm a judicial nominee, whether the president is a Democrat or Republican."  

What does this mean for Senator Cornyn and the Kagan nomination?  I should think that's fairly clear.  He believes that she should not be asked about her substantive positions, and not asked to commit to vote in particular ways on the bench.  He believes she should not be denied confirmation because he disagrees with her views on those issues, provided a majority of senators want to confirm her.  He believes her personal opinions, on abortion or anything else -- presumably including her actions as the Dean of Harvard Law School with respect to military recruiters -- are equally irrelevant to her fitness for the Supreme Court.  And he believes she is entitled to an up-or-down vote in which a minority cannot prevent her from taking a seat on the bench if the majority wants her to be confirmed.  

Let me add two observations.  First, I do not believe Senator Cornyn's recent statement about Kagan's nomination is inconsistent with these remarks.  That's mostly because his statement is too vague to give us meaningful guideposts; but it's not facially inconsistent with what he said earlier.

Second, I don't think there's anything unfair about quoting Senator Cornyn's words back at him.  I'm not accusing him of hypocrisy, now or in advance.  I am boxing him in, to be sure, but with his own words.  And he has made clear that these views are not positional -- they don't depend on who is sitting in the chair in front of him.  He's made clear that this is his view of what the Constitution itself requires.  If he should find himself constrained by those words, I should think he would treat that as appropriate -- as an outcome of his own considered and principled views -- and not as an attempt to secure his forebearance on some substantive issues or his willingness to oppose any tactics that would prevent an up-or-down vote and a confirmation by a majority of the Senate if the votes are there.  That he may consider himself constrained, and obliged to act in particular ways with respect to the Kagan nomination that are consistent with his earlier stated views, is as much a compliment as a limitation.  Certainly nothing in what he has said suggests that he can allow Kagan herself to set the terms of her own confirmation hearings; to the contrary, it is clear that only his own views on what is constitutionally required of him (and her) matter, not what Kagan herself has said.