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Filibusted

By Dana Milbank
Wednesday, November 18, 2009

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.

"I opposed filibusters before," the Alabaman said with his trademark twang. But in this case, he went on, "I don't agree with his judicial philosophy. Therefore, I believe this side cannot acquiesce into a philosophy that says that Democratic presidents can get their judges confirmed with 50 votes."

Uh-huh.

Ten of the Senate's 40 Republicans, attempting some measure of consistency, parted ways with Sessions and voted with Democrats in a resounding 70 to 29 vote to break the filibuster. But the rest abandoned their deeply held views of just a few years ago.

There was, for example, Minority Leader Mitch McConnell (Ky.). Back in 2005, he demanded "a simple up-or-down vote" for nominees and urged the Democrats to "move away from advise and obstruct and get back to advise and consent." He declared that Democrats wanted to "take away the power to nominate from the president and grant it to a minority of 41 senators."

On Tuesday, McConnell voted to sustain the filibuster.

There was also Sen. Sam Brownback (Kan.), who in 2005 gave his considered opinion that "neither filibusters nor supermajority requirements have any place in the confirmation process."

On Tuesday, Brownback voted in favor of filibusters.

And there was Sen. Lindsey Graham (S.C.), who warned four years ago that "if the filibuster becomes an institutional response where 40 senators driven by special interest groups declare war on nominees in the future, the consequence will be that the judiciary will be destroyed over time."

On Tuesday, Graham voted to institutionalize the filibuster.

When you're in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.

Republican senators had been under intense pressure from conservative interest groups. The American Conservative Union asked its supporters to respond to this "critical test." The Conservative Action Project urged a filibuster, and the radicalized Republican National Committee issued a document proclaiming that "HAMILTON PROTECTED SEX OFFENDERS ON THE INTERNET."

GOP lawmakers evidently felt queasy about this reversal, because not a one of them joined Sessions on the floor as he pressed for the filibuster. Sessions argued that Hamilton "has previously worked for or been associated with ACORN, which is certainly not a mainstream organization but a real left-wing group for sure." (Hamilton spent a month working as a canvasser for the group when he finished college 30 years ago.) Further, Sessions accused, "Mr. Hamilton was a board member and vice president of the ACLU chapter of Indiana." (That was 20 years ago.)

The allegations tumbled from Sessions's lips, even the outrage that Hamilton "permitted the use of Allah by a Muslim imam" in a public prayer. Sessions said Hamilton fit the category of "extraordinary circumstances" in which a filibuster should be allowed under an agreement four years ago by a bipartisan group of 14 Senate moderates. Sessions neglected to mention that he opposed that agreement at the time.

Democrats had some consistency problems of their own on Tuesday, as they found themselves demanding the "up-or-down vote" that they tried to deny Republicans during the Bush years. But Democrats were not in the same league of hypocrisy, because they weren't opposing Republicans' right to filibuster. They merely had enough votes to override this particular filibuster.

That was in part because of the lavish praise for the nominee by his home-state senator, Richard Lugar, the chamber's most senior Republican. Then there was the matter of Republicans' past denunciations of filibusters, which Democrats had well archived.

Sen. Lamar Alexander (Tenn.), for example, vowed in 2005 that he "would never filibuster any president's judicial nominee, period." He maintained his credibility with a vote against the filibuster. So did Sen. Orrin Hatch (Utah).

Sessions, however, was unencumbered by such foolish consistency. Senate Majority Leader Harry Reid (D-Nev.) reminded Sessions on the Senate floor that the Alabaman had previously branded the judicial filibuster "obstructionism" and "very painful," and a "very, very grim thing."

"I agree," Reid said. But Sessions no longer did.

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