Editore"s Note
Tilting at Windmills

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March 3, 2009

REPUBLICANS' MADDENING JUDICIAL GAMES.... In Bill Clinton's second term, Senate Republicans did everything they could to slow the Democratic president's drive to fill judicial vacancies. By 2001, those same Senate Republicans changed their own rules to make it easier for George W. Bush to stack the federal courts. By 2003, a group of senators led by Orrin Hatch had completely re-written the rules on senatorial objections to would-be judges.

Left without the traditional tools, Senate Democrats started filibustering the most extreme right-wing nominees. This, Republicans said, was literally unconstitutional and an affront that tore at the fabric of our system of government. "Advice and consent," the GOP said, meant giving every judicial nominee an up-or-down vote. Anything else, they said, would be an outrageous insult to our democracy.

According to reports in Roll Call, Politico, and The Hill, Senate Republicans have miraculously changed their minds again.

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would "change the tone in Washington" if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate's constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

Even by the standards of the congressional GOP, this is truly ridiculous. The same people who said judicial filibusters were literally illegal are threatening to launch judicial filibusters. What's more, they also want to see the failed former president's unsuccessful judicial nominees put on the federal bench for life -- just a gesture of goodwill.

All that talk about up-or-down votes has gone completely out the window. The passionate arguments about an elected president being able to stack the courts with like-minded judges, enjoying lifetime appointments, are but a memory. Why, it's almost as if the Republicans' deeply held principles vary depending on the president's political party. That couldn't be, could it?

My friend Kyle, who had a terrific piece on this, points to Orrin Hatch's vision for how the process is supposed to work, at least when Bush is president:

"It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

"In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate's task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

"To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success -- an independent judiciary."

This was the dominant position of every Republican in Congress for the last eight years, as well as the vision embraced by the entire conservative movement.

And yet, there was every single member of the Senate Republican caucus yesterday -- including Hatch -- making the opposite argument to Obama.

Their shamelessness knows no bounds.

Steve Benen 11:15 AM Permalink | Trackbacks | Comments (37)

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Oh, my God. This is too unbelievable. Republicans keep picking fights they will lose badly against an opponent who does not preemptively surrender.

Put the obvious hypocrisy aside, Steve. The American public has the political memory of a gnat. Bush is the most unpopular president now, if not ever. Pushing for seating "Bush appointees" of any stripe in any position is about as sure a political loser as killing social security.


Posted by: inkadu on March 3, 2009 at 11:08 AM | PERMALINK

It is only maddening 'cause the Dems refuse to play hardball. They are afraid of being attacked on Faux, and they want to be liked more than they want to lead.

Posted by: Obama -- Not as Tough as the Steelers on March 3, 2009 at 11:09 AM | PERMALINK

See yesterday's "Powerline" for a breathtaking example of right-wing thinking on this issue.

Posted by: Wally on March 3, 2009 at 11:10 AM | PERMALINK

Can we point out, too, that Hatch's position is really indistinguishable from that of the minority Congressional Dems. They didn't like the ideology of most of Bush's appointments. There were a very small number of very right wing judges, whose judgments (or lack of judgment) had raised their concern. (This also in no way bore resemblance to what Hatch and his ilk did to Clinton in the 90s.)

I'm not sure, however, what possible reason Obama should have to renominate people appointed by the supremely unpopular former occupant. If Obama nominated some far left wing radical judges with highly questionable views that ran counter to established law, perhaps they would be justified in filibustering. Of course, this isn't going to happen (or, if so, extremely rarely).

The false equivalency is simply stunning.

Posted by: Paulk on March 3, 2009 at 11:13 AM | PERMALINK

They applied the "suggestion" of a "nuclear option;" we might as well at least call 'em on their bet, and start talking about the same "option."

Or---maybe we could up the ante to an "all-in" double down on these sluggards, suggesting that we actually employ the nuclear option, and stuff the courts to the brim with judges that will overwhelmingly support listing the GOP as a "terrorist organization."

No more GOP. See? It's quite simple. We knife them in the belly with their own political bayonet---and then, just watch them die....

Posted by: Steve W. on March 3, 2009 at 11:17 AM | PERMALINK

Oh, Steve W, I like the way you think! However, our mushy Dems want to be "fair" and all, I fear. So let's not only shun the nuclear option but let's give the Rethugs every other judicial nomination. Can't wait to see who they want for the Supremes! I have nothing but trepidation when it comes to the Dems having enough spine to tell the Rethugs to go Cheney themselves.

Posted by: Frak on March 3, 2009 at 11:22 AM | PERMALINK

Repubs are like the spoiled brat who changes rules on the playground when things either go his way or when they don't and throws a tantrum when everyone tells him no.

Let them hold their breath till they turn blue. They won't notice the brain damage as they don't use their brains anyway.

Posted by: Former Dan on March 3, 2009 at 11:23 AM | PERMALINK

Their shamelessness knows no bounds.

Tell me about it. Hatch is possibly my least favorite senator because of his behavior and rank hypocrisy on this issue going back to the beginning of the decade and before.
He purposely stonewalled on Clinton's nominees, then screamed about the big crisis of judicial vacancies after Bush took office, which of course necessitated nothing more than an up or down vote.
I can barely stand to look at the guy's face on television without throwing a blunt object at the screen--but it's not worth ruining a good t.v.

If I were Obama, I'd put the letter in the circular file without responding, but of course he's classier than that. But anything more than one or two token Republicans and I'll be mad. Let them start filibustering nominees, then I'm sure they'll call for the nuclear option like they did when Dems were the minority--ha, yeah right.

Posted by: Allan Snyder on March 3, 2009 at 11:23 AM | PERMALINK

Another day, another bit of Republican hypocrisy. SSDD.

What would really be news-worthy is the SCLM noticing the desperate flopping.

Posted by: PeakVT on March 3, 2009 at 11:28 AM | PERMALINK

What? You expected fair play? Honesty? Bi-partisanship? These are cockroaches we're talking about. Stomp the bee jabbers out of them. Someone wear some sharp pointed boots to nail the ones in the corners. Bring wood stakes for the larger ones.
Open season on Repukes. Happy days are here again.

Posted by: Jim B on March 3, 2009 at 11:29 AM | PERMALINK

[heavy sigh] Look forward to years of this sh*t.

At this point, I'm more interested in how the Party-of-NO are going to paint themselves two years hence.

I'm outta popcorn.

Posted by: Kevin on March 3, 2009 at 11:32 AM | PERMALINK

phuck it LET THEM FILIBUSTER!!! I want their bluff called for once. Seriously I want to see them filibuster judicial nominees for all the world to see so President Obama can point right to them for not respecting the rule of law and delaying justice for thousands if not millions of Americans. This should be a no brainer.

Posted by: sgwhiteinfla on March 3, 2009 at 11:33 AM | PERMALINK

I really hope Obama brings this up come Saturday's radio address. These are the games angry children play when their divorced parents start dating again, telling potential new mommy or daddy "You want to get along with me? Give me everything I want, or else I'll make your life miserable." How else to describe it? Children all of them, and none of them worthy of the offices they hold, the history they shape, the constituents they represent.

Posted by: slappy magoo on March 3, 2009 at 11:42 AM | PERMALINK

I say go for the nuclear option. Dump filibusters for judicial nominees, and for everything else while we're at it. Enough of this slimy, sniveling sh*t from the GOP.

Posted by: Mimikatz on March 3, 2009 at 11:44 AM | PERMALINK

Obama can have some real fun by nominating the Bushies, grill them in committee about supporting Bush's insane and unconstitutional legal theories, then have the Dems unanimously vote against them.

Really, what does Hatch think would happen? The Blue Dogs aren't that stupid or numerous, are they?

Posted by: martin on March 3, 2009 at 11:49 AM | PERMALINK

Can you spell "NUCLEAR OPTION"?

I think the Democrats should introduce a bill on Republican hypocrisy.

I don't know how many Republicans are left who were not part of the Gang of 14. However, Reid should request that at least 50% of the remaining Republicans go to the well of the Senate and state that they are hypocrites because they were in favor of the Nuclear Option when the Republicans had a smaller majority than the Democrats have now. But, because politics is about power, the hypocritical Republicans are requesting their right to filibuster.

If the Republicans don't openly admit they are hypocrites then maybe the Democrats should play hardball.

Posted by: neil wilson on March 3, 2009 at 11:51 AM | PERMALINK

As Atrios says - Nobody could have predicted . . . I like that Steve takes the time to connect the dots, but really, we expect principled actions by Republicans? Bahaaahaa! Not setting myself up for false equivalency charge I hope, but our side is not much better. I do think that Republican's moral certitude makes them more vulnerable to the charge of hypocrisy, but in the end in Washington its all about power, how to get it, how to keep eat. Everything else is window dressing. That's why Presidential elections matter. The loser gets pulled away from the trough kicking and screaming.

Posted by: Scott F. on March 3, 2009 at 11:58 AM | PERMALINK

by 2010 we will be done with them!

just give them enough rope...

Posted by: effluvientOne on March 3, 2009 at 12:06 PM | PERMALINK

Let's just be done with it. If the Republicans want to switch sides, the Democrats should as well. They should implement the "constitutional option", exactly as the Republicans proposed it, and end judicial filibusters.

Posted by: Joe Buck on March 3, 2009 at 12:08 PM | PERMALINK

One wonders, "what part of last years election results did the republicans not understand?"

For the last two years, the Republicans have been defeated in the polls. The hands-off approach to regulation and corporate mergers has not worked - hence our current depression. And when they stand on "principle," like Gov Bobby rejecting unemployment insurance money for his poverty stricken state, they only look mean and heartless. Plus, there is the whole "we want to turn America into a christian theocracy nation without science" problem -- which has been rejected by the courts and the eductional system.

Uh ... perhaps its time to rethink their policies which seem less based on fact and history but rather on wishing their childhood fables were true.

They stand naked before us, a bunch of plump old men.

Posted by: Kurt on March 3, 2009 at 12:14 PM | PERMALINK

To show how bipartisan they are, the Democrats should give all of Bush's judicial nominees lifetime appointments to the bench and a tax cut besides. That would show the Republicans who is in charge.

Posted by: qwerty on March 3, 2009 at 12:17 PM | PERMALINK

"Bipartisan"...they keep using that word. I do not think it means what they think it means.

Posted by: Inigo Montoya on March 3, 2009 at 12:22 PM | PERMALINK

No need for the nuclear option. Let's just go back to the old days, when a filibuster meant endless days of senators reading from the D.C. phone directory. Let's see how serious the Repugs really are.

Posted by: Django48 on March 3, 2009 at 12:31 PM | PERMALINK

The Republican party is so corrupt, small d democratically and ethically, it can only travel the way the power-winds blow!

Forget finding solutions to the issues facing middle class Americans, just usurp the power necessary to keep the balance sheet of privilege in their favor.

Forget the idea of smart governance, just represent the top 2% of our nation's citizens who have already scuddled any attempt of democratic compromise.

Forget the business of the people needs to be done, just obstruct and undermine a previous position and show us all the baffoons you really are!

It has become obvious the Republican party's base is nothing more than militia-hiring rich folks or simply the ignorant among us! What a constituency! -Kevo

Posted by: kevo on March 3, 2009 at 1:16 PM | PERMALINK

I predict - that Obama's first nominees will include some Republicans of the John E. Jones III type (Kitzmiller v. Dover, destroyed creationist teaching in PA schools). The President is nothing if not a law and order type; I think for the judiciary Repub or Dem might be somewhat secondary to him. I think it's important to remember that Obama is out to do more than just govern; he's fixin' to change the structure and narrative of how things are done. Responding to Republicist hysterics w/ reactivity only strengthens a dysfunctional political discourse. Which is precisely what the Pukes want, and which is precisely what this President is not going to give them. Once again, when Americans see Obama and the Dems responding to Republicist histrionics w/ calm, measured, forceful accuracy (and not a little political jiu jitsu), the strangled discourse which provides cover for Republicists will be superceded, leaving the Pukes (and more importantly, their particularly degraded narratives) more and more exposed for what they really are.

Posted by: Conrads Ghost on March 3, 2009 at 1:18 PM | PERMALINK

Oh, please, GOP, please do this. Go ahead and oppose the popular, charismatic president. Because, you know, that's working so well for you so far. Did you guys learn nothing from last Tuesday?

And why the hell should Obama nominate rejected Bush nominees? He's got his OWN nominees, GOP. You don't get to have a say here. You don't like them, vote against them, but you don't get to dictate who he nominates.

Posted by: gf120581 on March 3, 2009 at 1:31 PM | PERMALINK

What's another word for Republican Ethics?

Posted by: bcinaz on March 3, 2009 at 1:41 PM | PERMALINK

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees

Astonishing chutzpah. Obama won in a landslide, and that means he gets to pick his judges, not Bush's.

Looks like the GOP is seeing Rove's "permanent Republican majority" get weaker by the day, doesn't it?

Posted by: Gregory on March 3, 2009 at 1:44 PM | PERMALINK

Obama should treat the Rs like the spoiled and immature children they are. Speak nicely but firmly. Pat them on the head and send them to the corner with some sort of gentle verbal slam. "I'm disappointed that the Rs are changing the rules once again now that they're out of power instead of working with me to advance the will of the people as expressed in the November 4 election."

As for Reid, he should have Patrick Leahy introduce a sense of the Senate along the lines of 'the members of the Senate agree to work fairly with the president on his judicialy nominees'. Are the Rs going to vote against the word "fairly"? Well, of course they will, but let's get it on record that they agree to be unfair. I'm sure someone here or there can come up with better wording, but best to get their tactics on the record. The party of NO, unreasonableness, working against the people.

Posted by: Me on March 3, 2009 at 1:44 PM | PERMALINK

I hope Obama's WH responds by saying he agrees with the first opinion the republicans put forth when Bush was president and repeat this Orin Hatch opinion back to them.

Their principles change with administrations. They really are the party of Hypocrisy.

Posted by: joey on March 3, 2009 at 2:32 PM | PERMALINK

The right simply says whatever will benefit it at the moment. Rationality has nothing to do with anything.

Posted by: beep52 on March 3, 2009 at 3:11 PM | PERMALINK

Former Dan sez:
Repubs are like the spoiled brat who changes rules on the playground when things either go his way or when they don't and throws a tantrum when everyone tells him no.

They are not like those kids, they ARE those kids.

You described a Republican friend of mine to a T. I play a lot of games with him, and if there is the slightest ambiguity about a rule, he will fight to the teeth to enforce the ruling that benefits him.

Not uncoincidentally, he also became a lawyer.

Posted by: inkadu on March 3, 2009 at 3:12 PM | PERMALINK

It's one of the areas where the GOP plays ridiculously transparent games because they know no one is really paying much attention to what they (or the dems) do or don't do. So when they're in power one set of rules applies, when they're not then they say the opposite. They believe that their bad behavior might be rewarded. Obama needs to prove otherwise. Whatever they do over for the lower level judicial appointments will be a very small taste of how they'll be whenever there is a SCOTUS fight.

They're going to act like spoiled, powerless children no matter what. Obama needs to just choose solid, smart people and let the GOP act like fools.

Posted by: zoe kentucky on March 3, 2009 at 4:22 PM | PERMALINK

You described a Republican friend of mine to a T. -inkadu

Same here. And I cut him loose long ago...and he became an airline pilot. Hopefully he makes less than 250 large because I know I'd hear his moaning all the way from TX as though I was going to be somehow sympathetic to his plight.

Posted by: Kevin on March 3, 2009 at 4:26 PM | PERMALINK

uh...you were expecting integrity and consistency from the GOP? Please. I expected nothing else. If we had functioning MSM with any integrity at all, the GOP would get ripped a new one over this...but we don't. so they won't.

Pathetic. For them..and for Democrats who don't rip them a new one for it.

Posted by: LL on March 3, 2009 at 4:33 PM | PERMALINK

Why should they care about being consistent? It's in their interest *not* to be.

They want people to think of the government as full of two-faced politicians. They're betting that to the degree that actions like this make news at all - not much - that people will just hear it as being about "Congress" generically.

Which is a good bet, because the media loves this sort of thing. It's "savvy" - principles are for losers, man.

Posted by: tatere on March 3, 2009 at 5:27 PM | PERMALINK
Kyle, who had a terrific piece on this, points to Orrin Hatch's vision for how the process is supposed to work, at least when Bush is president:

"It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, ..."

It seems to me that the Senate should let the president do his Constitutional duty to appointing judges. After that they'll have their say.

Posted by: MarkH on March 3, 2009 at 9:13 PM | PERMALINK



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