Editore"s Note
Tilting at Windmills

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March 10, 2009

BLUE-SLIPS.... The NYT had a good editorial yesterday, slamming Senate Republicans for threatening to filibuster President Obama's judicial nominees. These are the very same GOP lawmakers, the Times noted, who said filibusters of judicial nominees are "outrageous" and unconstitutional.

The National Review's Ed Whelan, not surprisingly, took issue with the editorial, accusing the paper of making "distortions."

1. The editorial contends that Republican senators are now "threatening ... filibusters if Mr. Obama's nominees are not to their liking", and it alleges that this threat is "at odds with their previous views on the subject." But the Republican senators' letter does not threaten filibusters for the purpose of defeating judical [sic] nominees "not to their liking". It threatens a filibuster if Democrats trample the traditional blue-slip privilege. 2. As to the blue-slip privilege: The editorial states that Judiciary Committee chairman Patrick Leahy "must decide whether to follow the Senate's 'blue slip' tradition, which holds that judicial nominees should not move forward without their home-state senators' support." Two sentences later, it asserts that "Republicans abandoned them [blue slips] when they controlled the Senate under Mr. Bush." That assertion is a fantasy, an ignorant statement, or an outright lie. All that Senate Republicans are seeking is maintenance of the same blue-slip practice that they afforded Democrats Democrats successfully insisted on* under President Bush. There is nothing that Leahy "must decide" -- unless he wants to trample the blue-slip privilege.

Now, I was planning to go point by point, highlighting every error of fact and judgment in Whelan's piece, but as it turns out, Kyle at Right Wing Watch beat me to it. Seeing no reason to reinvent the wheel, I'll just refer you to Kyle's fine work.

I would add just one related point about the evolution of blue-slip objections.

* In 1998, for no special reason, Orrin Hatch decided that only one senator needed to object to a nomination. This made it easier for Republicans to obstruct Bill Clinton's nominees.

* In 2001, when one of their own became president, Hatch suddenly reversed course and decided that it should take two objections after all. That made it harder for Democrats to obstruct George Bush's nominees.

* In early 2003, Hatch went even further: senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it would still go to the floor for a vote.

* A few weeks later, yet another barrier was torn down: Hatch did away with a longtime rule that said at least one member of the minority had to agree in order to end discussion about a nomination and move it out of committee.

Whelan wants to talk about Democrats "trampling the blue-slip privilege"? Really?

Update: For the record, Ed Whelan responded to Kyle's argument late yesterday.

Steve Benen 11:20 AM Permalink | Trackbacks | Comments (11)

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the thing that always impresses me about right-wing tropes like this is that not only are they idiotic and ill-informed, the talker is almost assuredly pugnaciously snotty about it.

Posted by: howard on March 10, 2009 at 11:18 AM | PERMALINK

I can't believe I agree with Hatch on this, but I would like to see all four of his points extended to US Attorneys as well.

Posted by: Danp on March 10, 2009 at 11:29 AM | PERMALINK

Hatch is a piece of work. Take a look at any piece of legislation that erodes freedom and strengthens the Authoritarian dream of an Amerikan fascist state, and Orrins fingerprints will be all over it.

He has been especially egregious vis a vis the Drug wars.

Posted by: SnarkyShark on March 10, 2009 at 11:37 AM | PERMALINK

Ironically, Whelan's Exhibit A, the nomination of Peter Keisler, was held up by Keisler's home-state senators, both of whom were Democrats. It was the blue-slip privilege that kept Keisler off the bench. Now the Republican Caucus requests his renomination in the very same letter where they argue for a more robust blue-slip privilege. If they get what they want, then won't Keisler just be stuck in committee again? I seriously doubt Sarbanes likes him any better now than he did before.

Posted by: The Fabulous Mr. Toad on March 10, 2009 at 11:46 AM | PERMALINK

I have a compromise to offer:

If Orrin Hatch will publicly admit that he is a hypocrite and a partisan hack with one standard for his own party and another for everyone else, then Chairman Leahy will follow the rules used by Hatch before 2003 and allow a judicial nominee to be held up if both senators from a nominee's state object to the nominee.

If Orrin Hatch will acknowledge that he wouldn't recognize integrity and judicial qualifications if they bit him in the butt and resign from the Judicial committee, then Leahy will follow the rules used by Hatch before 2001 and allow a judicial nominee to be held up if one senator from a nominee's state objects to the nominee.

I doubt Hatch would go along with this "compromise", but I suspect that Leahy has the backbone to find it appealing.

Posted by: SteveT on March 10, 2009 at 12:05 PM | PERMALINK

filibusters of judicial nominees are "outrageous" and unconstitutional

only when the nominees are presented by a republican president.

When the nominees are presented by a Democratic president, then any and all methods of obstruction, including setting the building on fire and holding the nominees' families hostage, are perfectly fair.

Sheesh, Steve, I'd have thought you'd know this by now.

Posted by: Yellow Dog on March 10, 2009 at 12:27 PM | PERMALINK

Same-o same-o.

Posted by: GOP - Party of Hypocrisy on March 10, 2009 at 12:52 PM | PERMALINK

Whelon wants to talk about Democrats "trampling the blue-slip privilege"? Really?

Yes, really. You seem to be under the impression that it's possible for Republican hacks to be fazed by actual facts contrary to their imagined reality.

Posted by: jonas on March 10, 2009 at 12:53 PM | PERMALINK

Obama's response should be that he will gladly consult with opposition party members on judicial nominees to a much greater extent than his predecessor, for as long as the opposition party members keep in mind that their role is purely advisory and he is not obliged to follow that advice. Otherwise he reserves the right to consult with them only to the extent that his predecessor consulted with the opposition party during his tenure.

What could they have to complain about then?

Posted by: majun on March 10, 2009 at 12:54 PM | PERMALINK

I've long since stopped trying to make logical sense of the Republicans' position on judicial nominations. There's no way to see it other than a nakedly political and bad faith attempt to create one standard for Democratic nominees and another for Republicans for the purpose of packing the federal bench with partisan reactionary hacks. It's time to get the heavy thumb of the Federalist Society off the scales of justice and restore some semblance of ideological balance.

Posted by: Django48 on March 10, 2009 at 3:39 PM | PERMALINK

In 1998, for no special reason, Orrin Hatch decided that only one senator needed to object to a nomination.

For no special reason? There's a very special reason.

He's a very special baby.

Posted by: alan on March 10, 2009 at 5:49 PM | PERMALINK



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