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John Kyl: From "Up or Down Vote" to Filibuster Bluster

May 26, 2009

Back in 1998, Arizona Senator John Kyl was one of 28 Republicans to oppose the nomination Sonia Sotomayor to the Second Circuit Court of Appeals. But while he was one of the most ardent voices demanding an "up or down vote" for President Bush's judicial selections in 2005, since November Kyl has been threatening to filibuster President Obama's picks for the Supreme Court.
The latest shot across the bow from Kyl, the Senate's #2 ranking Republican, came on Sunday, just two days before Obama's announcement this morning regarding Judge Sotomayor:

Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench. The Arizona Republican acknowledged that his party likely does not have enough votes to sustain a filibuster, but he said nonetheless he would try to delay or derail the nomination if Obama ventures outside what Kyl called the mainstream.
"We will distinguish between a liberal judge on one side and one who doesn't decide cases on the merits but, rather, on the basis of his or her preconceived ideas," Kyl said.

As it turns out, Kyl within 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 is Democrat Barack Obama.
Whether Kyl, former advocate of the so-called "nuclear option" to end the prospect of a judicial filibuster in the Senate, now turns to that very procedural mechanism to block Sotomayor's confirmation remains to be seen. After, rejecting the nation's first Hispanic nominee to the Supreme Court would only deepen the Republican Party's woes among that critical electoral block. And in 1998, several of Kyl's current GOP colleagues, including Olympia Snowe (R-ME), Susan Collins (R-ME), Thad Cochran (R-MS), Orrin Hatch (R-UT) and Richard Lugar (R-IN), voted to put her on the Second Circuit.
Despite his warnings to President Obama, it is John Kyl who has some "preconceived ideas" about who belongs on - or even gets a vote on the Senate floor to join - the Supreme Court. As Kyl put it in April 2005:

"This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do."

2 comments on “John Kyl: From "Up or Down Vote" to Filibuster Bluster”

  1. The Right Wing echo machine has been sounding off about Sotomayor saying she's not equipped with the intellect to be on the Supreme Court--this from the Party of (Yalie Legacy)Dubya, Darth Cheney, and the Forgetful Gonzo! Rush and the boys think she's not bright enough to be white, Anglo-sSxon, and Protestant, methinks! The Party of hate, class warfare, spin is on the move.


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

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