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Debating the filibuster

Senator Jon Corzine (D-N.J.) and Senator Orrin Hatch (R-Utah) appeared on MSNBC’s “Hardball with Chris Matthews” Wednesday to discuss the ongoing debate over the judicial nomination process and in particular, the confirmations of Janice Rogers Brown and Priscilla Owen.

Senator Jon Corzine (D-N.J.) and Senator Orrin Hatch (R-Utah) appeared on MSNBC’s “Hardball with Chris Matthews” Wednesday to discuss the ongoing debate over the judicial nomination process and in particular, the confirmations of Janice Rogers Brown and Priscilla Owen. 

Following is an excerpt of their conversation:

CHRIS MATTHEWS, HOST:  Republican Senator Orrin Hatch of Utah is a member of the Judiciary Committee and Senator Jon Corzine is a Democrat from New Jersey. Which of the opinions of Justice Brown, Senator Corzine, don’t you like?

SEN. JON CORZINE: Well, I think that the judicial activism risk of a judge who argues that all of the New Deal doesn’t fit into our constitutional framework is a danger ...

MATTHEWS: But which of her judicial opinions don’t you like? Cite some cases you don’t like about Justice Brown.

CORZINE: I think it is actually how she has spoke about what she believes is constitutional and not is how I have come to my view. It is not the particular decisions she has laid down. I think, though, she has stated very clearly that her view is that these laws are outside the precedent and the constitutional framework that allows them to be.

MATTHEWS: I want to get to the consequences of her views in her opinions. Where, in her judicial opinions, do you find the consequences that you are scared of in terms of her appointment? What bothers you about her opinions that makes you want to not have a vote on her?

CORZINE: As you know, in an appeals court you can’t actually set precedent and change interpretations of the law that are very well established, and I think that she has spoken out on a consistent basis inconsistently with what I think are precedents on a lot of public policies that are already decided.

MATTHEWS: Would you like to vote against her if it comes down to it?

CORZINE: I will vote against her if it comes down to it.

MATTHEWS: Why don’t you allow your leadership to allow it to come down to it then? Why don’t you allow a vote in the Senate so that you can vote against it?

CORZINE: This is very simple. The United States Senate has always been a place, an institution, that protected minority rights. That’s why we have two senators from California with 42 million people and two from Wyoming with 600,000. It was built on the principle that minority rights should be protected, and the rules of the Senate were written so that filibuster was an appropriate format for challenging the majority. And it should be protected going forward, and I don’t think we ought to be changing the rules to break the rules.

MATTHEWS: But public opinion polls agree with you on that sentiment, but they also think that court nominees should have an up or down vote. What do you say to that?

CORZINE: I believe that there is a fundamental need to defend the right of minorities in this country. And that’s what the United States Senate has traditional been in place for and not always have I agreed with the use of the filibuster, but that has been one of those elements that have made our country great, because it forced long term thinking, and we are clearly talking about a long term commitment to an individual, a lifetime appointment, and I think the Senate rules should stand.

* * *

MATTHEWS: Let me ask you, Senator Hatch, about the other nominee being discussed today ...

SEN. ORINN HATCH: Let me first, Chris, say something. Janice Rogers Brown is a minority. She is an African American woman, sharecropper’s daughter, came up the hard way, and rose all the way to the Supreme Court of the State of California, and she has the approval of the American Bar Association, the Democrats’ old standard, and because she is a conservative African American, they don’t like her.

Priscilla Owen, Sen. Ted Kennedy misquoted her, he misstated her cases. I have to say they have done this. They have distorted her record. Think about her. She was first in her class at Baylor Law School. First on the bar examination. She has got the top rating of the American Bar Association. She was re-elected with 84 percent of the vote in Texas. She had all 15 former bar association presidents, most of whom are Democrats, every major editorial board in the state for her and they call her an extremist? Come on.

MATTHEWS: Let me ask you both. Senator Corzine first: You are right. The filibuster is part of Senate tradition. Everyone knows that and respects it. There is a strong sentiment in the country to protect it. But it hasn’t normally been used in judicial nominations, and I wonder why the Democratic minority believes it should now.

CORZINE: First of all, it has been used in other instances on judicial nominations. Abe Fortas situation is most obvious but it has been used in other situations. The rules in the Senate have been used by Republicans and Democrats to tie up nominations without even getting them a vote in committee. So this is not inconsistent with history with how we have approached judges from time immemorial in our history and the filibuster, I think, is definitely an appropriate vehicle when you are talking about a lifetime appointment for someone.

And there is real debate about whether these individuals—I find it, actually, fairly ironic that Republicans are defending judicial activists who want to write the law on the bench, but we want to all have the ability to use our votes inside the context of the rules for the Senate and filibuster has always been a part of that.

MATTHEWS: Senator Hatch, it seems to be it's come down to this. Will the filibuster be in order against judicial nominations? There is no give either way. Seems to me it is going to come down to an up or down power decision by the Senate next week.

HATCH: I have to mention some of our Republicans wanted to filibuster Clinton judges and I said that’s not going to happen, and I prevented that and so did Trent Lott, who backed me up on it. The fact is that I believe advise and consent means a vote up or down.

Keep in mind there are two calendars in the Senate. One is the legislative calendar. I’d fight to my death to keep the filibuster for that. But the other one is the executive calendar where we are supposed to give advice and consent. Consent means a vote up or down. And what’s wrong with giving these people who have bipartisan majority support a simple vote up and down and by the way, there has never been a filibuster in the United States Senate, except you could make the case that maybe the Fortas case was, but even if you agree that it was, it was a bipartisan filibuster. Almost as many Democrats as Republicans voted to sustain the filibuster.

They have been maligned badly, they ought to get a vote up or down. Vote against them if they don’t like them. Senator Corzine has that right and I would respect that right. But at least give these people a bipartisan majority vote up or down.

* * * *
MATTHEWS:  What’s wrong with thinking outside the box? Why are judges bad because they are not ordinary?

CORZINE: When a judge is arguing, where an individual is arguing that precedents that are well established and generally accepted by society at large but the real cases that they have been accepted by precedents in courts, and they want to change those laws because they believe from their personal perspective that they are not constitutional, I think that’s outside the mainstream.

MATTHEWS: So you would have rejected Earl Warren because ...

CORZINE: No, I don’t know whether I would have because I don’t think he was outside of the mainstream.

MATTHEWS: The mainstream was separate or equal was okay. It took somebody to look into the Constitution to see something that nobody saw before, to say the Brown case.

CORZINE: Well, you don’t have to be outside the mainstream to say I am going to reexamine things and look at challenges when you are on the Supreme Court or Circuit Court and you want to reexamine precedent.

But when you already have dictated what it is you believe needs to be  changed by precedent, I think we understand where an individual was going, as opposed to looking for the consistencies of precedent.

MATTHEWS: Would you vote against a liberal activist judge?

CORZINE: If they were dramatically outside the mainstream, absolutely.

MATTHEWS: Okay. Senator Hatch, the issue of outside the mainstream does recall Barry Goldwater, outside the mainstream. As if you have a position that’s not within the 40 yard line you shouldn’t be on the court. What do you make of that?

CORZINE: Well, that’s no excuse to vote against somebody. But look, during the Clinton years, the Democrats argued every case that if you had the approval of the American Bar Association, which is certainly not a conservative organization, then you are within the mainstream. The mainstream is fairly broad, by the way, and every one of these people not only have approval of the American Bar Association, most of them have the highest rating they can get from the American Bar Association.

And by the way, some of these comments about Janice Rogers Brown have been distortions of her record. She made comment outside of the court when she was speaking to try and create controversy and interest, but on the courts she writes the majority opinion. Now that’s a liberal court and she is a conservative African American woman ...

MATTHEWS: Aren’t you a first or original intent guy, Senator Hatch. Don’t you believe in strict construction?

HATCH: No I don’t. I believe that that’s part of it. I am more of an originalist than I am a strict constructionist. That is, what did the Founding Fathers mean? Because we kept this country alive because we followed the Founding Fathers. In the case of Priscilla Owen, when they complain about - Well, first of all, they say that the attorney general, Gonzales, criticized her. And no, he criticized herself. He said, in looking that, if I took another viewpoint, then I feel myself would be an activist. He never called her an activist or the other two dissenting judges.

So what did they do? They upheld the lower court finding of fact, which is what the appellate courts should be doing. And then she gets criticized for that that the parents should be notified in the case of a girl who may not have been mature enough to make her own decision about abortion. My gosh, 80 percent of the American people think that ought to be done ...

MATTHEWS: Senator, we only have a couple of seconds left. I am sorry to cut you up. Do you think there is any change for a compromise on what seems to be an absolute against an absolute position here?

HATCH: Well, I don’t know, but I’ll certainly look at anything, but I don’t think we should compromise an up or down vote of any of these people who have a bipartisan majority, they’re ready to vote for them.

MATTHEWS: Senator Corzine, do you think Democrats should give on the issue of the use - how extraordinary the use should be of the filibuster of judicial nominations?

CORZINE: I do think it ought to be in exceptional cases. In my own view, based on my view that these folks want to break precedent, this is outside of mainstream and I think is an exception case.

MATTHEWS: How many of these nominees do you see as exceptional and should not get up or down votes. How many that are on the dock now?

CORZINE: I would say at least three of the five that are really under challenge.

MATTHEWS: And you could compromise on the others?

HATCH: Hold up, there are seven of them now. Hold up. It just doesn’t equate.

CORZINE: I don’t believe that the nuclear option, the so-called elimination of the filibuster should be practiced and put forward. I think that is what the issues are about. We ought to be protecting the rights of the minority to speak its voice. And by the way, minority has lots of connotations, including points of view that have held our society together. That is what the rule of law is about and I think it is very important, and I think our constitutional writers, as Senator Hatch talks about the original intent, the original intent gave two senators to every state regardless of population. That’s not majority rule.