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How Republicans Learned to Love the Judicial Filibuster

May 1, 2009

The end of the Souter era on the U.S. Supreme Court also officially marks the beginning of the GOP's new found love of the judicial filibuster. After years in the majority insisting President Bush's picks for the bench deserved an "up or down vote," the same Republican Senators are now threatening to turn to the judicial filibuster they once promised to eviscerate with the so-called "nuclear option."
Of course, Republicans made clear that their "up or down vote" talking point was no longer operative even before word of Justice Souter's departure. In March, all 41 GOP Senators signed a letter to President Obama warning, "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." Among those signatories was Oklahoma's James Inhofe who, while having previously suggested the judicial filibuster was unconstitutional, promised 10 days ago to block Obama's nomination of U.S. District Judge David Hamilton to the 7th Circuit Court of Appeals.
But it was Arizona's John Kyl who with days of Barack Obama's election fired the first salvo in the coming judicial war. Addressing the conservative Federalist Society in November (a group whose leading lights includes C. Boyden Gray, who once insisted "No judge has ever been defeated by a filibuster"), Kyl regurgitated tried and untrue Republican sound bite about so-called "judicial activism." Kyl warned his audience that he would filibuster Supreme Court nominees he deemed too liberal:

Kyl, Arizona's junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.
"He believes in justices that have empathy," said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.
Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

If that seems like a 180 degree turnabout for the junior Senator from Arizona, that's because it is.
Back in 2005, Kyl was at the forefront of then-majority Senate Republicans threatening Democrats with the "nuclear option" rule change to bar future judicial filibusters of Bush appointees. At a November 28, 2005 campaign event for Kyl, President Bush praised his ally's fight to block the filibuster:

"I can't thank Jon Kyl enough for making sure the judges I nominate get a fair hearing and an up or down vote on the floor of the United States Senate."

When now-Justice Samuel Alito came before the Senate Judiciary Committee for his confirmation hearing, Kyl as usual parroted the trusted GOP sound bite:

"I look forward to a dignified hearing followed by a fair up-or-down vote on the Senate floor."

Alas, that was then and this is now. After receiving what President Bush called a "thumping" in the 2006 mid-terms, the Republicans lost their Senate majority. And now, "the Decider" when it comes to Supreme Court nominations will be Democrat Barack Obama.
In early 2008, that prospect moved the band of hypocrites at the Weekly Standard to praise John McCain for his role in preserving the judicial filibuster. While the Standard's Dean Barnett previously bemoaned McCain's "uncanny ability to drive virtually all conservatives nuts," Adam White and Kevin White in January lauded McCain's leadership in the "Gang of 14" that saved the judicial filibuster. Not because McCain's position on the so-called "nuclear option" was right in principle, of course, but because it preserved the ability of a Republican minority to block future Democratic judicial nominations:

Finally, it must be noted that McCain's opposition to the nuclear option did not merely serve short-term conservative interests in the specific context of Bush's nominations; rather, it served long-term conservative interests in the federal bench generally. As McCain has warned, there will come a day--perhaps soon--when a Democratic president will nominate decidedly non-conservative justices and judges, and a Democratic Senate majority will want desperately to confirm them. When that moment arrives, conservatives will call on the Republican minority to utilize every tool in the Senate minority playbook to thwart those nominations--especially the filibuster...preservation of the filibuster threat may ultimately prevent the ascent of Supreme Court judges that Laura Ingraham and Rick Santorum would dearly regret.

Of course, the "up or down vote" talking point long ago disappeared from the vocabulary of the Senate GOP. The minority "roadblock Republicans" of the 110th Congress easily set the record for blocking legislation via the filibuster.
As John McCain's junior partner in Arizona Jon Kyl made clear, that same strategy will be in place for President Obama now that the time for his first judicial nomination has come. The religious right that once gathered at "Justice Sunday" events to pray for George W. Bush's would-be judges will now bless the Republican holy hand grenade that is the judicial filibuster. As for the defeated and disheartened right-wing bloggers who once called the Gang of 14 "disappointing", "a nightmare" and "a bunch of m-fing cowards," they too have a new love.

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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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