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The Surprisingly Early Apostasy of Sen. Ken Salazar

Just as Paris was worth a mass for protestant King Henry IV of France, clubby relations with fellow Democrats appear to be worth apostasy on judicial appointments for Colorado Sen. Ken Salazar (D-Colo.).

Salazar entered the Senate celebrating President Bush’s nomination of William G. Myers III to the 9th U.S. Circuit Court of Appeals. Along with 14 other state attorneys general, he effused in a Jan. 30, 2004, letter that the nominee displayed “outstanding legal reasoning” regarding endangered species, Indian affairs, federal lands and water, timber, fish and wildlife issues.

Salazar showcased his support of Myers to prove nonpartisanship and a devotion to principle worthy of Sir Thomas More. In a pre-election interview with the editorial board of the Rocky Mountain News, the Senator-elect championed the right of judicial nominees to a Senate floor vote on confirmation. In other words, he opposed the Democrats’ filibustering of 10 of the president’s appellate choices in order to foil appointments by simple Senate majorities, the constitutional standard.

These statesmanlike views, however, conflicted with the encyclicals on judges issued by the Senate Democratic leadership. Salazar was greeted at the U.S. Capitol with all the enthusiasm of the pope toward Martin Luther or King Henry VIII.

Democratic heavyweights summoned the junior Senator from Colorado to issue an ultimatum: either retract his support for Myers and defend the Democratic filibustering of Bush’s judges, or expect irrelevancy in the Democrat Party. They did not know much about the president’s constitutional power to appoint, or the history of the filibuster rule. But they were masters at putting the fear of God into recusants from Democratic dogmas.

Salazar’s canticle over judges instantly changed. On Feb. 18, he confessed to the same Rocky Mountain News that he was no longer committed to vote for Myers. In fact, he urged Bush to withdraw Myers’ nomination.

With impeccable casuistry, the Senator amplified: “The perspective I had [at the time of the letter] was one that came from serving as attorney general and working with Bill on Western issues. I now have a broader responsibility of voting up or down. I have to look at his record.”

Yet Salazar had examined Myers’ record before praising his judicial qualifications. Less than three weeks before, as noted above, he had acclaimed the nominee’s credentials in addressing an array of knotty legal subjects: endangered species, Indian affairs, etc.

Salazar also did a rhetorical somersault on the question of a floor vote for all nominees. He now laureled filibusters as a legitimate Democratic weapon to thwart Bush and a majority in the Senate on judicial appointments. In other words, the minority should dictate to the mainstream.

Nothing is inherently wrong in Salazar’s flip-flops. As President Abraham Lincoln advised, a man who does not grow wiser by the day is a fool. And Ralph Waldo Emerson sermonized that a “foolish consistency is the hobgoblin of little minds.” But Salazar articulated no plausible reasons for abandoning his prior views, other than to curry favor with Senate Democrats. He was unable to cite a single legal opinion of Myers’ insinuating incompetence or bias.

Senate rules did not permit judicial filibusters until 1949. Yet Salazar was unable to cite a single judicial appointment prior to that date that should have been rejected by a filibuster. The defeat of Supreme Court nominee Robert Bork in 1987 by a floor vote of 58-42 confirms that filibusters are superfluous to preventing appointments outside the popular mainstream. In other words, judicial filibusters smack of obstructionism for the sake of obstructionism.

Salazar’s conversion from statesman to Democratic partisan shows that expediency is generally preferred to martyrdom. In the Senate, the more things change, the more they stay the same.

Bruce Fein, former deputy associate attorney general in the Reagan administration, is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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