Yesterday Election Law Blog‘s Rick Hasen had an op-ed in Roll Call arguing that the filibuster is no more inherently “undemocratic” than the Senate itself. Setting aside the merits of Hasen’s comparison, I was struck by the opening of his piece:
Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees.
This caught my eye because it is false.
Setting aside whether, say, filibustered Ninth Circuit nominee Carolyn Kuhl is more or less “ideologically extreme” than, say, confirmed Sixth Circuit Judge Jeffrey Sutton, or whether filibustered Fifth Circuit nominee Justice Priscilla Owen is more or less “ideologically extreme” than confirmed Fifth Circuit Judge Edith Brown Clement, Senate Democrats have readily acknowledged that they are filibustering several Bush nominees as payback for Republican obstruction of Clinton nominees, and not because of ideology. Specifically, Senate Democrats oppose confirmation of four nominees to the U.S. Court of Appeals for the Sixth Circuit from Michigan — Henry Saad, Richard Griffin, David McKeague, and Susan Neilson — because Republican Senators blocked Clinton’s Michigan nominees, including one who is related to Senator Carl Levin. As detailed here, and here Michigan Senators Levin and Debbie Stabenow said they would “blue slip” all Michigan judicial nominees until Bush agrees to renominate two of Clinton’s nominees. When Senate Republicans disregarded the blue slips and sought to confirm three of these nominees over the home-state Senators’ objections, the Democrats resorted to a filibuster.
Senators Levin and Stabenow have repeatedly stated that they are concerned with “fairness” and not the ideology of these particular nominees. As they wrote to President Bush last year, they are “willing to discuss any compromise offer that addresses the unfair treatment of the two Michigan women previously nominated by President Clinton to vacancies on the Sixth Circuit so that the tactic used to deny them hearings does not succeed.”
Whether their concerns are legitimate grounds for a filibuster — or whether Republican Senators’ obstruction of Clinton’s nominees was any worse or less justified than Democratic obstruction of the first Bush’s nominees — is a debate for another day. Here I merely seek to correct the record as to why Senate Democrats are filibustering some of President Bush’s nominees, and to make clear that those filibustered to date are not the “most ideologically extreme” of Bush’s nominees.
UPDATE: Rick Hasen responds here. I think he concedes my point, but also notes (correctly) that my criticism does not address or undermine the primary substantive argument of his piece. Larry Solum also chimes in on substance of Hasen’s column, and Hasen responds here.
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