CONSISTENCY ISN’T THEIR STRONG POINT…. When President Obama nominated Judge Hamilton for the 7th Circuit seven months ago, Obama did so specifically because Hamilton has a record of moderation. The nomination was intended to send a signal that the process of filling judicial vacancies need not be contentious. “We would like to put the history of the confirmation wars behind us,” one White House aide said back in March.
That didn’t happen. The very same Republican senators who insisted that judicial filibusters are an affront to our constitutional traditions yesterday launched a filibuster of the Hamilton nomination. Dana Milbank’s piece on this is worth reading.
In their quest to thwart President Obama, Republicans do not fear the hobgoblin of consistency.
For much of this decade, Sen. Jeff Sessions of Alabama, now the top Republican on the Judiciary Committee, led the fight against Democratic filibusters of George W. Bush’s judicial nominees. He decried Democrats’ “unprecedented, obstructive tactics.” To have Bush nominees “opposed on a partisan filibuster, it is really wrong,” he added. He demanded they get “an up-and-down vote.” He praised Republican leaders because they “opposed judicial filibusters” and have “been consistent on this issue even when it was not to their political benefit to do so.”
So now a Democratic president is in the White House and he has nominated his first appellate judicial nominee, U.S. District Judge David Hamilton. And what did Sessions do? He went to the floor and led a filibuster.
Sessions rationalized his inconsistency by saying he doesn’t “agree” with Judge Hamilton’s “judicial philosophy.”
He had plenty of company. Minority Leader Mitch McConnell (R-Ky.) said in 2005 that judicial filibusters are a distortion of the Senate’s “advise and consent” responsibilities, but that didn’t stop him from joining Sessions’ filibuster yesterday. Sen. Sam Brownback (R-Kan.) said in 2005 that judicial filibusters have no place in the Senate, but he voted with Sessions, too. Sen. Lindsey Graham (R-S.C.) said in 2005 that judicial filibusters are likely to “destroy” the federal judiciary “over time,” but he also joined his GOP colleagues.
In the end, 70 senators, including 10 Republicans, voted for cloture. Just 29 supported the filibuster, and most of them demanded the exact opposite when Bush was in office.
Now, I suspect the charge from the right will be that the hypocrisy cuts both ways — Republicans are turning their backs on their collective Bush-era outrage, but Senate Dems, the argument goes, are also contradicting their previous positions.
Milbank, to his credit, notes the qualitative difference: “Democrats were not in the same league of hypocrisy, because they weren’t opposing Republicans’ right to filibuster.”
Right. For the GOP, filibusters of Bush’s nominees were literally unconstitutional, and an affront to our system of government. Now, these same Republicans think the same tactic is fine. The two haven’t switched sides — Dems haven’t said judicial filibusters tear at the fabric of democracy, they simply said it’s a dumb idea.