A common argument making the rounds is that Senate Democrats only filibustered some of President Bush's judicial nominations because then-Senate Judiciary Committee Chairman Orrin Hatch violated Senate traditions with regard to blue slips. Let's assume for the moment that the charge against Hatch is accurate, does this explain the filibuster of Bush nominations? No. Filibusters were used to stall or block the confirmation of nominees for which blue slips were completely irrelevant, including Miguel Estrada and Priscilla Owen. Estrada was nominated to the U.S. Court of Appeals for the D.C. Circuit, so there was no blue slip issue whatsoever. Owen was nominated to a Texas seat on the U.S. Court of Appeals for the Fifth Circuit, and both Texas Senators strongly supported her confirmation. Why, then, were they filibustered? Here's the case made by the NYT editorial board at the time:
Filibustering Judge Owen's confirmation would send the Bush administration two important messages: the president must stop packing the courts with ideologues, and he must show more respect for the Senate's role. . . .The other odd thing about the "Senate Democrats were just defending blue slips" argument is that it would actually seem to justify Senate Republican use of a filibuster for the same purpose. After all, if filibusters were an acceptable way to enforce the traditional blue slip policy before, they should no less acceptable today. And even if Senate Republicans opposed such filibusters in the past, would it be wrong for them to acquiesce to the new norm created by Senate Democrats? They opposed the filibuster for judicial nominations, but they lost that fight. Save for the few who (wrongly) maintained that such filibusters were "unconstitutional" (as opposed to "extraconstitutional," undemocratic, or merely unwise), I am not even sure the hypocrisy charge sticks all that much if the alternative is "unilateral disarmament."
The filibuster is not a tool to be used lightly. But the Senate has been right to use it against the nomination of Miguel Estrada, who is hiding his views on legal issues. It should do the same to stop the once-rejected Judge Owen, and tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary.
As I've made clear repeatedly, I think Senate Democrats were wrong to filibuster Bush judicial nominees, particularly on ideological grounds. I further believe Senate Republicans would be wrong to respond in kind, even to defend the blue slip. I believe filibusters have no place in the judicial confirmation process. A Senate minority should not block the confirmation of judicial nominees who enjoy majority support. Period. But I am not sure those who supported the use of such tactics have much basis to complain now that the shoe is on the other foot.
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