Playing by Reid's rules on filibusters

By Jeff Sessions
Friday, November 27, 2009

Legal scholars have long debated whether the filibuster may be used to keep judicial nominees off the bench. For practical purposes, that question was answered on May 23, 2005. That night, while forging a settlement of a boiling debate, the bipartisan "Gang of 14" established that filibustering judges is allowed, but only under "extraordinary circumstances."

This controversy arose when Democratic senators met at a strategy retreat shortly after President George W. Bush took office. There, they made a calculated and historic decision to cast aside more than 200 years of Senate precedent and to openly and systematically filibuster even highly qualified Bush nominees.

Uproar ensued, leading to contentious debate and even an all-night Senate session. Then-Majority Leader Bill Frist (R-Tenn.) led a major effort to reestablish the tradition through a dramatic rule change referred to as the "nuclear option." At the last moment, a group of seven Democrats and seven Republicans reached a compromise: Henceforth, for them, judicial filibusters should not be undertaken unless "extraordinary circumstances" were present to justify the higher vote requirement to end debate.

Before that night, Democrats had succeeded in holding up a host of superb judicial nominees, including the current chief justice of the United States, John Roberts.

Then a federal appeals court nominee, Roberts waited two years for an up-or-down vote on his nomination, and he was among the lucky ones. Fantastic judges such as Terrence Boyle, Carolyn Kuhl and Miguel Estrada never even received a vote.

The Democrats' tactics were a dramatic change of Senate precedent, which had generally limited filibusters to legislative matters. These were politically motivated obstructions, not thoughtful debates on the nominees' character or judicial philosophy. In the midst of a filibuster of Priscilla Owen's nomination to the U.S. Court of Appeals for the 5th Circuit, Sen. Bob Bennett (R-Utah) suggested that 10 additional hours be allowed before a final vote. Then-Minority Leader Harry Reid (D-Nev.) objected. How long did he need? "[T]here is not a number [of hours] in the universe that would be sufficient," Reid replied.

In all, 1,044 total votes were cast in attempts to deny 17 Bush nominees a chance at confirmation -- and 99.9 percent of them came from Democrats under Reid's leadership.

I wasn't among the handful of senators who arrived at the "extraordinary circumstances" compromise in 2005. In fact, I felt strongly, and had said publicly, that the use of the filibuster was inappropriate for judicial nominations. Even so, I recognized then -- as I do now -- that the Senate can set its own rules and that those rules had changed.

So, given this context, it's difficult to understand the majority leader's recent indignation over a Republican attempt to block only one of President Obama's most troubling nominees, Judge David Hamilton (since confirmed). It's curious that the architect of the judicial filibuster is complaining about its use.

In my view, Hamilton's record and past statements demonstrate an activist judicial philosophy that qualifies as "extraordinary." He has endorsed the view that judges write "footnotes to the Constitution" and has unapologetically embraced the flawed "empathy standard." His record includes a number of troubling rulings that evidence those beliefs.

To be clear, I believe that the president is entitled to a reasonable degree of deference on his judicial nominations. I supported more than 90 percent of President Bill Clinton's judicial nominees, and I hope I am able to do the same for President Obama, even if they would not be my top choices.

But I take seriously the Senate's constitutionally mandated role to "advise and consent," and I am obligated to oppose nominees who have demonstrated either an unwillingness to subordinate themselves to the Constitution or a desire to advance a political, social or economic agenda from the bench.

This year, a number of my colleagues and I have voted against just three judicial nominees, including Justice Sonia Sotomayor. Only in the case of Judge Hamilton have we raised a procedural objection to Majority Leader Harry Reid's desire to proceed to a vote.

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

A return to the tradition of up-or-down votes on all judicial nominees would, I believe, strengthen the Senate. I have offered to discuss with my colleagues ways this could be permanently codified in the Senate's official rules. So far, no takers.

The writer, a senator from Alabama, is the ranking Republican on the Judiciary Committee.

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