Judicial Filibusters and Partisan Hypocrisy

Matt Lewis
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Posted: Jun 01, 2009 4:48 PM
Regardless of how it turns out, the confirmation battle over the nomination of Judge Sonia Sotomayor has already highlighted one interesting phenomenon: Democrats and Republicans are swapping arguments.

For example, as recently as 2002, Sen. Schumer was advocating judicial filibusters. In fact, he invented the "Schumer Rule" -- which The Hill defines as, "a tactic used by Sen. Charles Schumer (D-N.Y.) when he opposed judicial nominees because of legal or political ideology." (You might remember all the clamoring from Republicans that judges deserve a fair up or down vote -- well, that was in response to this rule).

Today, Sen. Schumer is tasked with shepherding Sotomayor's nomination through the confirmation process. And he will now be arguing that a president deserves to seat his nominees. And he is already arguing that Sotomayor is "filibuster proof."

In fairness, no Republican Senators or conservative outside groups -- that I know of -- are even threatening a filibuster, right now. Most conservatives I've talked to merely want to ensure the confirmation process isn't rushed through. After all, Judge Sotomayor has ruled on thousands of court cases, and a proper vetting for a lifetime appointment isn't asking too much...

Hypocrisy cuts both ways, and some Republicans -- who once opposed judicial filibusters on principle -- like Sen. Chuck Grassley, are now keeping their options open. Sen. Cornyn is also leaving the door open. Still, for most Republicans, the option is reserved only for "extraordinary circumstances" -- but the mere possibility still makes for good drama.

And while Democrats will cry hypocrisy over the mere possibility of a filibuster -- Republicans can always point out that they used to believe in the tradition of following a president's prerogative, too -- until, that is, the Democrats changed the rules. (This is an especially compelling argument when you consider then-Senator, now President Barack Obama filibustered Judge Samuel Alito.)

But while the disagreement over whether or not to even consider the option of a filibuster is starting to get attention, past statements and votes will prevent what might have been a more effective, if lesser known, tactic from even being considered ...

Written in 1979, Rule IV says that before a nominee can make it before the full senate, at least one vote from the a committee must be cast by a member of the minority party. As such, if all seven Republicans on the Judiciary Committee stood together, they could, theoretically, launch a "committee filibuster" on Sotomayor.

Unfortunately for Republicans, when Democrats have previously attempted to invoke Rule IV, every Republican -- including now-Chairman Jeff Sessions -- voted to interpret the rule in such a manner as to now allow the filibuster to take place (Republicans on the committee, led by Sen. Hatch, argued it was merely a recalcitrant Chairman's rule).

Many conservatives agreed with Republicans on that one, too.

This, of course, won't prevent writers from speculating about it. As NPR noted,
No Supreme Court nomination has ever been held up by Rule IV. Invoking it in the Sotomayor hearing would certainly break new ground in partisan warfare. It would also seem to repudiate an agreement Republicans insisted on in 2001, when they lost control of the Senate to Democrats because of Jim Jeffords' party switch. That accord, in a letter to colleagues signed by the new Democratic Judiciary chairman, Patrick Leahy, and the ranking Republican, Orrin Hatch, stipulated that even if a Supreme Court nomination were opposed by a majority of the committee, it would be reported to the full Senate. The joint letter, though, says nothing about how expeditiously such a nomination should be sent to the Senate.

Though pundits like to talk about the possibility of invoking Rule IV, it is inconceivable that any Republicans -- much less all of them on the committee -- would attempt such a maneuver.

Regardless, it is clear that after years of Republican majority and Democratic minority, more than just the ideology has changed. Strategies and tactics based on things like "Senate tradition" -- not on political philosophy -- often have as much to do with who wins and loses as anything else. And it seems like many players on both sides like to make "convenient" arguments that change when their situations change. When it comes to things like senate tradition and the rights of the minority, it seems, where you stand depends on where you sit ...