Maddening Judicial Games

[one...two...tree 2,762]

In Bill Clinton's second term, Senate Republicans did everything they could to slow the Democratic president's drive to fill judicial vacancies. By 2001, those same Senate Republicans changed their own rules to make it easier for George W. Bush to stack the federal courts. By 2003, a group of senators led by Orrin Hatch had completely re-written the rules on senatorial objections to would-be judges. Left without the traditional tools, Senate Democrats started filibustering the most extreme right-wing nominees. This, Republicans said, was literally unconstitutional and an affront that tore at the fabric of our system of government. "Advice and consent," the GOP said, meant giving every judicial nominee an up-or-down vote. Anything else, they said, would be an outrageous insult to our democracy.

According to reports in Roll Call, Politico, and The Hill, Senate Republicans have miraculously changed their minds again.

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would "change the tone in Washington" if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate's constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

Even by the standards of the congressional GOP, this is truly ridiculous. The same people who said judicial filibusters were literally illegal are threatening to launch judicial filibusters. What's more, they also want to see the failed former president's unsuccessful judicial nominees put on the federal bench for life -- just a gesture of goodwill.

All that talk about up-or-down votes has gone completely out the window. The passionate arguments about an elected president being able to stack the courts with like-minded judges, enjoying lifetime appointments, are but a memory. Why, it's almost as if the Republicans' deeply held principles vary depending on the president's political party. That couldn't be, could it?

My friend Kyle, who had a terrific piece on this, points to Orrin Hatch's vision for how the process is supposed to work, at least when Bush is president:

"It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

"In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate's task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

"To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success -- an independent judiciary."

This was the dominant position of every Republican in Congress for the last eight years, as well as the vision embraced by the entire conservative movement.

And yet, there was every single member of the Senate Republican caucus yesterday -- including Hatch -- making the opposite argument to Obama.

http://www.washingtonmonthly.com/

[Ban Hammer 13,355]

steven, didn't you get the memo? the dems won the presidency and a majority in both the house and senate.