Cornyn has called judicial filibusters ‘unconstitutional’

Sen. John Cornyn (R-Texas), the chairman of the National Republican Senatorial Committee (NRSC), on Sunday declined to rule out the possibility of a filibuster of Supreme Court nominee Sonia Sotomayor.

But Cornyn has a long record of opposing even the idea of a judicial filibuster. As a former Texas Supreme Court Justice and member of the Judiciary Committee, Cornyn was one of the biggest proponents of up- or-down votes on judicial nominations, calling judicial filibusters “unconstitutional.”

In 2003, Cornyn penned what amounts to a pretty round rejection of judicial filibusters for the National Review:

(Democrats) argue that the current filibusters are justified on the basis of precedent. But, in fact, the current filibusters are both unconstitutional and unprecedented. Senate Democrats themselves have admitted as much.

The Constitution expressly establishes supermajority voting requirements for authorizing treaties, proposing constitutional amendments, and other specific actions. To confirm judicial nominees, by contrast, the Constitution requires only a majority vote – as the U.S. Supreme Court unanimously held in United States v. Ballin (1892).

No wonder, then, that filibusters have been roundly condemned as unconstitutional – by Democratic senators and leaders as well as by prominent Democrats on the bench and in the legal academy.

…

Until now, every judicial nominee throughout the history of the Senate and of the United States of America, who has received the support of a majority of senators, has been confirmed. Until now, no judicial nominee who has enjoyed the support of a majority of senators has ever been denied an up-or-down vote. Indeed, until now, Democrat and Republican senators alike have long condemned even the idea of defeating judicial nominees by filibuster.

Interestingly, Cornyn has also suggested that a party opposes minority nominees at it’s own peril. In 2005, when Condoleezza Rice and Alberto Gonzales were being nominated as secretary of state and attorney general, Cornyn said Democrats could suffer consequences for opposing black and Hispanic nominees.

“From a strictly political standpoint, Democrats are hurting themselves by attacking American success stories like Condoleezza Rice and Alberto Gonzales,” Cornyn told the Boston Globe in February 2005.

One wonders if the man in charge of Republicans’ Senate campaigns thinks the same holds true with Sotomayor.

UPDATE: Kevin McLaughlin, a spokesman for Cornyn’s Senate office, offers this comment, but doesn’t address the filibuster:

“Sen. Cornyn can make just one guarantee – he and his fellow Senate Republicans will treat Judge Sotomayor with more respect and dignity than Senate Democrats, including then-Senator Obama, afforded Republican nominees like Miguel Estrada and Justice Sam Alito in the past,” McLaughlin said.

-Aaron Blake