Senator John Cornyn (R-TX) used to sit on the Texas Supreme Court. But the second-ranking Republican in the Senate seems much more comfortable in his current role as Majority Whip. And he once again showed on Tuesday, Cornyn has no problem cracking the whip at federal judges and judicial nominees provided, of course, they were selected by Democrats.
As CNN among others reported, Cornyn didn’t merely promise to prevent confirmation hearings for any nominee President Obama might select. He warned that any jurist who answered the President’s call would be punished for doing so:
"I think they will bear some resemblance to a piñata," said Sen. John Cornyn of Texas.
"What I don't understand is how someone who actually wants to be confirmed to the Supreme Court would actually allow themselves to be used by the administration in a political fight that's going to last from now until the end of the year," Cornyn told a small group of reporters in the Capitol.
He added: "Because there is no guarantee, certainly, after that time they're going to look as good as they did going in."
Now, once upon a time (that time being the tenure of Republican President George W. Bush), Senator Cornyn felt differently. In 2003, he demanded an up-or-down vote for all of Bush’s judicial picks. As Cornyn explained in the National Review that November, he was outraged when four of 172 Bush nominees didn’t get it:
This is not politics as usual; it is politics at its worst.
After all, it is wrong for a partisan minority of senators to treat good people like statistics; wrong to mistreat distinguished jurists with unprecedented filibusters and unconscionable character attacks; wrong to hijack the Constitution and seize control of the judicial-confirmation process from the president and a bipartisan majority of the Senate; 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. Once is bad enough, and four unconstitutional filibusters is four too many.
Of course, Cornyn changed his mind when the White House changed hands. The GOP’s record-setting use of the filibuster became the new normal, as Barack Obama’s judicial nominees were blocked at previously unheard of rates. Two years into his first term, Obama saw only 58 percent confirmed, compared to 77%, 90%, 96%, 98%, and 97% for Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter. After Obama’s first year, the figures were even more astounding, with only 43 percent of his judicial selections confirmed, just half of Dubya’s 87 percent rate. It was no surprise that by 2013, John Cornyn casually declared:
“There is a 60-vote threshold for every nomination.”
But once judges got on the bench, Judge Cornyn announced he would hold them to his own standard of accountability.
Cornyn was one of the GOP standard bearers in the conservative fight against so-called "judicial activism" in the wake of the Republicans' disastrous intervention in the Terri Schiavo affair. On April 4th, Cornyn took to the Senate floor to issue a dark warning to judges opposing his reactionary agenda. Just days after the murders of judge in Atlanta and another's family members in Chicago, Cornyn offered his endorsement of judicial intimidation. Just days after House Majority Leader Tom Delay (R-TX) warned, “The time will come for the men responsible for this to answer for their behavior,” Cornyn issued a threat of his own:
"It causes a lot of people, including me, great distress to see judges use the authority that they have been given to make raw political or ideological decisions," he said. Sometimes, he said, "the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people."
Cornyn continued: "I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country…And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."
Facing criticism for his remarks seemingly endorsing right-wing retribution against judges, Cornyn stood his ground. "I didn't make the link," he said on Fox News Sunday, adding with a note of sarcasm:
"It was taken out of context. I regret it was taken out of context and misinterpreted."
Sadly for Judge Cornyn, Supreme Court Justices Ruth Bader Ginsburg and Sandra Day O’Connor made no mistake about his context or his meaning. In March 2006, RBG revealed that she and Justice O'Connor were the targets of death threats. On February 28th, 2005, the marshal of the Court informed O'Connor and Ginsburg of an Internet posting citing their references to international law in Court decisions (a frequent whipping boy of the right) as requiring their assassination:
"This is a huge threat to our Republic and Constitutional freedom...If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."
Neither O'Connor nor Ginsburg were shy about making the connection between Republican rhetoric of judicial intimidation and the upswing in threats and actual violence against judges. While Ginsburg noted that they "fuel the irrational fringe," O'Connor blamed Cornyn and his fellow travelers for "creating a culture" in which violence towards judges is merely another political tactic:
"It gets worse. It doesn't help when a high-profile senator suggests a 'cause-and-effect connection' [between controversial rulings and subsequent acts of violence]."
But his dark history of judicial intimidation didn’t stop Senator Cornyn from lobbing the same charge at President Obama.
As you'll recall, Republican leaders feigned outrage over President Obama's criticism of the Court's Citizens United decision during his 2010 State of the Union. Utah Senator Orrin Hatch called it "rude," adding "It's one thing to say that he differed with the court but another thing to demagogue the issue while the court is sitting there out of respect for his position." As usual, Texan John Cornyn took it a step further, calling Obama's strong disagreement with the Court "hysterical" and insisting:
"I don't think the president should have done what he did in trying to call out the Supreme Court for doing its job. They are the final word on the meaning of the United States Constitution, even when we don't like the outcome."
Of course, John Cornyn didn’t like the outcome of the 2008 and 2012 elections. Which is why Big Bad John is pledging that anyone President Obama selects to join the Supreme Court will soon bear some resemblance to a piñata. And remember, when it comes to judges, John Cornyn’s promise is also a threat.
