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Don’t Blame Democrats for Republican Obstruction of Obama’s Judicial Nominees

One month after Judge Sonia Sotomayor’s nomination to the Supreme Court, it is apparent that the White House’s stated aspiration of putting “the confirmation wars behind us— has few, if any, takers on the Republican side. [IMGCAP(1)]Republican leaders have promised her a “fair shake.— But behind the smiles, they seem, as confided to Roll Call by an unnamed Senate Republican leadership aide, “on the same page— with right-wing advocacy groups who demand a rejectionist strategy for Sotomayor and all of President Barack Obama’s judicial and other law-related nominees: delay, obstruct, strain for excuses to paint candidates as extreme and, wherever possible, block confirmation.The filibuster threat keeps popping up. Indeed, Obama’s first appeals court nominee, Indiana District Judge David Hamilton, is already being quietly filibustered, after all Judiciary Committee Republicans voted against reporting to the Senate floor his nomination for the 7th Circuit Court of Appeals.“I don’t think anybody wants to filibuster Judge Sotomayor,— Senior Republican Sen. Orrin Hatch (Utah) frowns, implicitly suggesting retaliation if her hearing is not pushed off past the August recess, “but sometimes [that is] the only way you can make sure things are fair.— Minority Leader Mitch McConnell has repeatedly refused to rule out a filibuster for Sotomayor. Republican leaders deny escalating the confirmation wars. McConnell claims that “the precedent was firmly set— by Democrats during the confirmation fight over President George W. Bush’s nomination of Samuel Alito in early 2006, when Massachusetts Sens. John Kerry and Edward Kennedy launched an abortive filibuster attempt. Former Republican National Committee Chairman Ed Gillespie elaborates that Republicans delivered overwhelming approval votes for President Bill Clinton’s two Supreme Court picks, Ruth Bader Ginsburg (96-3) and Stephen Breyer (87-9), because, as then-Judiciary Chairman Hatch said, they were “experienced in the law, highly intelligent, of good character and temperament.— But as Gillespie charges, Democrats, including then-Sen. Obama, invoked “ideology— to oppose Bush nominees John Roberts and Alito, and Republicans may now justly forego the “traditional standard— to block “the inevitable leftward shift of our highest court.— This blame-the-victim gambit misreads history. Professional fitness was not the only reason Republicans voted for Ginsburg, Breyer and most of Clinton’s first-term lower court nominees. Before names were submitted, Hatch had advised Clinton to “move to the center— on his choices, and Clinton acquiesced. Both Supreme Court nominees presented distinctly moderate profiles. Ginsburg’s voting record on the D.C. Circuit Court of Appeals was, as Hatch observed, “very similar— to her former D.C. Circuit colleague Antonin Scalia. Leading liberal women’s groups lobbied Clinton not to nominate Ginsburg, who had advocated a more incrementalist approach to abortion rights than the Supreme Court embraced in Roe v. Wade. Breyer’s most vocal opposition came from the left — consumer advocate Ralph Nader and his ally the late Ohio Sen. Howard Metzenbaum. Hatch reported reviewing candidates with Clinton’s judge-picking staff for “hours and hours together, regularly, each week.— Plainly, that collaborative model is no longer operative. But it’s not the Democrats who junked it. After the 1996 elections, Republican Sens. Jeff Sessions (Ala.), Jon Kyl (Ariz.) and Rick Santorum (Pa.) sought to wrest control of the nominations issue from Hatch. They formally proposed that all Republican caucus members pledge to reject ideologically incorrect nominees.While this attempted coup failed, stonewalling of Clinton’s nominees grew progressively more blatant; impeccably credentialed candidates, such as current Solicitor General Elena Kagan, were bottled up in the Judiciary Committee. During Clinton’s last two years, Republicans granted Judiciary Committee hearings to only 47 percent of Clinton’s appellate nominees (compared with 74 percent in 1995-96 and 79 percent in 1997-98) and blocked 56 percent of them, leaving 60 vacancies for a new Republican administration to fill.Nor is the Democrats’ response to Bush’s nominees precedent for Republicans’ current rejectionism. On the contrary, Democratic Senate leader Harry Reid’s (Nev.) initial public statements on Roberts noted his “suitable legal credentials—; in private with colleagues and advocates, Reid emphasized that he had left Roberts off a list given to Bush earlier of possible nominees whom Democrats would vigorously fight. After Roberts’ hearing, Judiciary Chairman Patrick Leahy (Vt.), as well as two Democratic colleagues, voted for the nomination. On the Senate floor, as Republicans now point out, about half the Democratic caucus, including Obama, cast votes against Roberts’ confirmation and, four months later, against closing debate on Alito’s nomination. But these symbolic gestures did not reflect Democratic Party policy. In both instances, Reid rebuffed fervid demands from liberal advocates and funders, and declined to “whip— the vote, i.e., to make all-out opposition a matter of caucus discipline rather than individual Senators’ choice.Moreover, a standard for filibusters was set during the 109th Congress, but not by the Democratic — or the Republican — caucus. Rather, in April 2005, the “Gang of 14— moderates from both parties went over the heads of their respective leaders and endorsed a rule that filibusters of judicial nominees would henceforth be permissible, but only under “extraordinary circumstances.— Members of the group, including Sen. Lindsey Graham (S.C.), deployed their collective voting power to enforce the “extraordinary circumstances— standard for the duration of that Congress. In particular, in addition to rejecting the Alito filibuster attempt, Democratic Gang of 14 members, as well as Reid and his leadership team, ignored liberal pleas to filibuster the D.C. Circuit nomination of Bush White House insider Brett Kavanaugh, who was confirmed May 26, 2006, by a 57-36 vote. In short, the legacy of the Clinton and Bush confirmation wars is plain enough. On up-or-down votes, it has indeed become accepted practice to vote no for ideological reasons. But that does not necessarily mean any ideological reason.Democrats in 2005 were not reflexive rejectionists. Half voted for Roberts — who interviewed as far more of a moderate than he has performed. Alito made no comparable effort to distance himself from bright red flags in his record on politically charged issues like abortion, workplace discrimination and states’ rights; accordingly, 41 of 45 Democrats voted against his confirmation. Against this history, there is scant basis for opposing confirmation of nominees like Hamilton, whose decisions were described by the president of the Indianapolis Federalist Society as “between the 30 yard lines,— or the extravagantly meticulous Sotomayor.Most important, the inherited standard for supporting a filibuster is the much higher bar of “extraordinary circumstances.— No way can that formula stretch to justify obstructing nominees like these. Simon Lazarus is public policy counsel to the National Senior Citizens Law Center.

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