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Letters to the Editor

As a Texan, I suppose I pay more attention to lawmakers from this great state than others might, which is a shame when that lawmaker is the Junior United States Senator from Texas, Mr. John Cornyn. (I don’t know if he is still qualified as a freshman Senator, since he has been in office for two years, or one full congressional session, however since Senate terms span three Congresses, he might still be a “freshman” while his counterparts who were originally elected in ’02 into the House of Representatives and subsequently reelected are firmly entrenched in their “sophomore” term.)

But classifications aside, Senator Cornyn has actually turned into a capable public servant, which unfortunately isn’t always the case with United States Senators, or elected officials period. He was recently appointed the chair of the Immigration Subcommittee, and considering his prior job, Attorney General of the State of Texas (a border state last time I checked, which was this past weekend when I was in Mexico), he should bring plenty of practical experience. He supports President Bush’s Immigration Plan, and while some Republican lawmakers have publicly expressed doubts about it, I happen to applaud any effort to document foreigners currently living in our country, legally or otherwise.

Senator Cornyn has also taken it upon himself to express his beliefs in opinion pages of several different national newspapers. What is most striking about the Op-Ed pieces is that Senator Cornyn doesn’t resort to rhetoric or hyperbole when making his case, what he does do is show his grasp of the law governing the issue (now there's a novel idea).

Most recently, he defended Judge Alberto Gonzales' appointment to the office of Attorney General in an opinon piece in USA Today.

Judge Alberto Gonzales is an exceptional attorney, devoted public servant and good man of humble beginnings. His nomination to serve as our 80th attorney general — and our first of Hispanic descent — is an inspiring American success story.

Unfortunately, President Bush's political opponents are attempting to use his nomination to score political points. Specifically, they condemn Gonzales for advising the president that, although every detainee deserves to be treated humanely, al-Qaeda and Taliban fighters have no legal right to the numerous additional privileges afforded to prisoners of war under the 1949 Geneva Convention.

There is one important problem with this criticism: Gonzales is right. This interpretation of the convention enjoys overwhelming support. It is well grounded in the text, structure and history of the convention. It has been affirmed by three federal courts. And it is supported by the reports of the 9/11 Commission and the special prisoner-abuse commission as well as international law experts across the political spectrum. At the confirmation hearing, even the committee's senior Democrat and the two law school deans he invited to testify conceded that al-Qaeda fighters are not prisoners of war.

And Senator Cornyn’s response to Editorials in the New York Times and the Los Angeles Times this past December in regards to support of the Judicial Filibusters employed under the watchful eye of then Senate Minority Leader and current former U.S. Senator from North Dakota Tom Daschle showed that in less than two years Senator Cornyn has mastered the complex rules and traditions of his peculiar house of Congress. And considering he sits on the Senate Judiciary committee, his insight into the matter is even more pertinent.

First, in his letter to the New York Times (which was never published, way to show some backbone there, NYT):

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

And next, his letter to the Los Angeles Times, which was published, albeit in truncated form

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.”

Opinion pieces such as these don’t get enough play, and they show the depth of understanding of the law, the Senate, and the legislative process that Texans have representing them in Washington.

And that's just one more thing we have on New York.

Oh yeah, and thanks are due to Will, for inviting me to share my thoughts publicly in this great forum. Hopefully I will one day be able to return the favor.

Posted by Ian Pittman · 25 January 2005 09:35 PM

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