Political Animal


May 19, 2011 3:45 PM ‘I would never filibuster any president’s judicial nominee’

By Steve Benen

A total of 43 senators — including 42 Republicans — successfully filibustered Goodwin Liu’s judicial nomination this afternoon. With that in mind, it’s worth noting what many of these same senators used to say about this practice before there was a Democratic president. For some, their own actions today weren’t just wrong; they were literally unconstitutional.

Lamar Alexander (R-TN) : “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”

Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”

Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”

John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.

Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”

Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”

Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”

There are other examples. Sen. Jim DeMint (R-S.C.) said “denials of simple votes on judicial nominees” are “unconstitutional.” Sen. Lindsey Graham (R-S.C.) said, “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional.” Sen. Richard Shelby (R-Ala.) argued, “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it.”

How many of these senators filibustered Liu’s nomination today? All of them.

What’s more, several other senators have never supported a judicial filibuster in their careers: Scott Brown (R-Mass.), Susan Collins (R-Maine), Olympia Snowe (R-Maine), and John Thune (R-S.D.). How many of them changed their minds today and refused to allow a qualified nominee to have an up-or-down vote? All of them, too.

And in the category of the truly ridiculous we have Sen. Ben Nelson of Nebraska, the only Democrat who filibustered Liu today. Nelson refused on more than one occasion to filibuster Bush’s most right-wing nominees, but has now taken to filibustering Obama’s mainstream nominees.

Update Glenn Sugameli, a staff attorney at Judging the Environment, and my go-to guy on matters related to judicial nominees, said in a statement, “The depths of partisan, unprincipled hypocrisy were plumbed by the many Republican Senators who voted to filibuster Goodwin Liu’s nomination after denouncing all such filibusters and insisting the Constitution requires up-or-down votes for all judicial nominees.”

Second Update: I originally had Sen. Kay Bailey Hutchison (Texas) voting for the filibuster today. She did not vote, so I’ve corrected the text.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


Post a comment
  • In what respect, Charlie? on May 19, 2011 3:47 PM:

    remember your motto Repigs:

    Hypocrisy First!

  • Ron Byers on May 19, 2011 4:15 PM:

    Hypocrisy thy name is Republican.

  • st john on May 19, 2011 4:16 PM:

    So, where is the outrage? You report these stories, but never report any concrete action taken by the opposition.
    We have treasonous terrorists in the Congress, and no one with the courage to name them. Alan Grayson would, but he was voted out.
    I am sick of this bullshit.

  • JW on May 19, 2011 4:17 PM:

    I'm a broken record on this point, but will challenge anyone who believes it impolitic for democrats to accuse the GOP of being the party of Rule or Ruin.

  • chi res on May 19, 2011 4:20 PM:

    Correct me if I'm wrong, but don't most of these quotes come from historical situations where Democrats have filibustered Republican nominees?

  • jjm on May 19, 2011 4:21 PM:

    Barrage the WH with requests for a recess appointment for Liu.
    And for Elizabeth Warren while they're at it.

  • Holmes on May 19, 2011 4:30 PM:

    If they think judicial filibusters are unconstitutional, then the circumstances shouldn't matter. Unconstitutional is unconstitutional.

    As for filibusters in general, the republicans have shattered all records in the last 6 years. They have filibustered nominees for positions that have never been filibustered before. The 'both sides do it' claim is a false equivalence.

    The republicans are nihilists. Democrats could never get away with the obstructionism we've seen in the last 2+ years, behavior because the media, who exists solely to echo right wing narratives, would hammer them for it.

  • Al on May 19, 2011 4:34 PM:

    As John Maynard Keynes said, "When the facts change, I change my mind. What do you do, sir?"

  • Neo on May 19, 2011 4:41 PM:

    As Miguel Estrada has said of Liu ..
    “The one thing that ought to be reasonably clear … is that someone who personally contributed to the sorry state of the confirmation process, by jumping in the mud pit with both feet and flinging the mud with both hands, is not well positioned to demand that standards be elevated solely for his benefit."

    He who lives in the 'mud pit' dies in the 'mud pit'

  • JW on May 19, 2011 4:42 PM:

    That "republicans are nihilists" is certainly accurate.

    But it doesn't ring quite as clearly as "the GOP is the party of Rule or Ruin".

  • danimal on May 19, 2011 4:54 PM:

    Ben Nelson voted to filibuster? Nelson the Democrat? The health care vote is probably the only worthwhile thing Senator Nelson will ever be good for, and it's in the past. It's well past time to say goodbye to him. He damages Democrats more than a ruby red GOP senator would. Hopefully Nebraska Dems will primary his sorry rear. It's useless to try and retain the seat if the best we can do is Ben Nelson.

  • chi res on May 19, 2011 5:01 PM:

    If more than one vote is needed to win, Nelson will always vote with the Republicans. It's his only hope to be re-elected as a Democrat in Nebraska. With this kind of lop-sided vote, I'm just surprised we didn't lose more Dems.

  • Holmes on May 19, 2011 5:02 PM:

    Again, judicial filibusters are either unconstitutional or constitutional. If the republicans thought it was unconstitutional during a republican Presidency, it is still unconstitutional now.

  • Holmes on May 19, 2011 5:06 PM:

    Unless Liu previously demanded another judicial nominee be filibustered, that Estrada quote makes little to no sense.

  • TCinLA on May 19, 2011 5:07 PM:

    Since when has Ben Nelson ever been an actual Democrat (as opposed to having "D" behind his name for some odd reason)?

  • Wikipedia is your friend on May 19, 2011 5:14 PM:

    To the retards who are justifying this behavior with the "bad Democrats did it first" excuse:

    During President Bill Clinton's first and second terms of office, he nominated 24 people for 20 different federal appellate judgeships but the nominees were not processed by the Republican-controlled Senate Judiciary Committee. The Democrats claim that Senate Republicans of the 106th Congress on purpose tried to keep open particular judgeships as a political maneuver to allow a future Republican president to fill them. Of the 20 seats in question, four were eventually filled with different Clinton nominees, fourteen were later filled with Republican nominees by President George W. Bush and two were left open during Bush's presidency. Senator Harry Reid, the Democratic leader of the United States Senate during the 110th Congress, and Senator Patrick Leahy, the Democratic leader of the Senate Judiciary Committee under Reid, repeatedly mentioned the controversy over President Clinton's court of appeals nominees during the following controversy involving the confirmation of any more Republican court of appeals nominees during the last two years of Bush's second term.Senate Republicans of the 110th Congress claimed that Democrats were refusing to confirm certain longstanding Bush nominees in order to allow a future Democratic president in 2009 to fill those judgeships. During his presidency, Clinton also nominated 45 people for 42 different federal district judgeships who were never confirmed by the United States Senate.
  • chi res on May 19, 2011 6:04 PM:

    Dear Wikipedia is your friend (you really should find better friends):

    1) I didn't read anything that said "bad Democrats did it first" until you wrote it.

    2) You should ask your friend about the word "filibuster" and how it is different than an "up or down vote" on a judicial nominee.

    3) It's common courtesy to provide a "linky" when you quote something directly from the intertubes.

    4) Didn't your mother tell you not to use words like "retards"? It's very offensive.

  • Analytical Liberal on May 19, 2011 6:05 PM:

    We in the left (i.e., sane and rational) realm used to react by saying, in the face of all manner of Rethug hypocrisy, mendacity, and insanity, by using the pejorative: IOKIYAR.

    I have a much more accurate and complete explanation for all the radical crap in the vast right-wing machine: the are "Deceivers."

    Rush, Huckabee, McConnell, Boehner, Fox News, Newt, the Koch brothers... every damn one of them exist to DECEIVE and harm us. Sometimes for fun, always for financial and political profit and power.

    Just remember: they are the DECEIVERS. It is an active, intentional, malignant effort to destroy America and every one of its small-d democratic institutions, values, and traditions that we cherish.

    They are the DECEIVERS.

    They are the DECEIVERS.

    We cannot afford to ever forget that in any dealings that we have with any of them - every word, every promise, every action, is done with a criminal "mens rea" (i.e., their subjective mindset), to deceive, to harm, and to destroy whatever they perceive as standing in their way.

    They are the DECEIVERS.

  • SteveL on May 19, 2011 8:11 PM:

    Ben Nelson is hardly a Dem. I think he is refraining from switching parties because he would be hit with a large bill from the DNC from subsidizing his last run for Senator. He has voted for the GOP more than the Dems in the past number of years.

  • Robert Waldmann on May 19, 2011 8:15 PM:

    It's ancient history now, the remarks about the constitution were not meant to be factual statements and are no longer operative. But just to re-litigate for the sake of re-litigation, Coburn's view that the constitution implies something about "if they come out of committee" is key (in fact the Constitution just says the Senate makes the rules of the Senate and doesn't mention committees).

    The Democratic filibusters were unprecedented, because reporting those nominations out of committee was unprecedented. The practice had been that the President consults with Senators over whose states nominees have jurisdiction and doesn't nominate people who are unacceptable to them (this procedure was not followed by Kennedy (after years of respecting the tradition) and Johnson for Southern states).

    Also, and more to the point, the Senate Judiciary committee had a blue slip rule which means they wouldn't bring nominations forward without the consent of all relevant senators. The first and crucial break with tradition was made by Orrin Hatch who decided to not apply the blue slip rule. My guess (and this is a guess) is that he was put in a difficult position by Bush, who refused to withdraw nominations which were, by the norms and traditions of the Senate, vetoed.

    So not only are the Republicans totally flip flopping about what's in the Constitution and demonstrating utter hypocrisy, but also they started it.

    Amazingly they seem to have gone so far that there is no ballance in the Washington Post which reports their flip flop without suggesting that Democrats used to argue that all judicial nominees should be filibustered or something. I think that, over there, they have given up on trying to say both sides do it. Sometimes the facts just can't be denied.

  • chi res on May 19, 2011 8:35 PM:

    It's amazing how difficult it can be to simply accept reality sometimes, particularly for a community that calls itself "reality-based."

    Point: A candidate for U.S. Senate that runs and is elected as part of the Democratic Party is considered a Democrat, whether he acts or votes like your perception of how a Democrat "should" act or vote, or not.

    Point: When Democrats have filibustered judicial nominees from republican presidents in the past, no matter who "started it," it is hypocritical and disingenuous to act offended when republicans do the same thing.

    "I'm shocked, shocked to find that gambling is going on in here!"

  • POed Lib on May 19, 2011 9:57 PM:

    Well, this is what the Democrats want, and this is what they get. They had the chance to remove the judicial filibuster, and did not take it. So, Cornyn is right. The Democrats are idiots for allowing this to continue.

  • bob h on May 20, 2011 7:05 AM:

    I don't know much about Liu's legal philosophy, but do know that he has contempt for Republicans, and that is probably what sunk him. Not liking Republicans.

  • Marc on May 20, 2011 7:28 AM:

    I did not scroll down far enough.

    Let me say again:

    "Extremism in defense of ideology is no vice."

    It is not so much that "they all do it", it is that Republicans are easier to read. Everything they say is the opposite of what they mean.
    No taxes - means taxes for the poor.
    No filibusters - means no filibusters for the Dems.
    No government intrusion in your life - means Government intrusion in the life of women and poor people (Pace Rachael).

    Take any Republican talking point you like - I bet you will find the same meaning.

  • kekaha on May 22, 2011 8:33 PM:

    @ Marc: Very good, insightful post about Republican meaning the opposite of what they say. Your supporting points are well-researched and documented. You pulled it off without sounding in the least bit like a whiner.

    Obviously, I am a Republican