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Bench Memos

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Cass Sunstein’s Illusory Contrast



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In an essay titled “Are Republicans Abusing the Filibuster on Nominees?,” law professor Cass Sunstein, one of the architects of the Democratic obstruction of President George W. Bush’s nominees, brazenly contends that Senate Republicans are using an “unprecedented” test for deciding whether to filibuster judicial nominees. By Sunstein’s account, Senate Democrats opposing Bush’s nominees applied the “out-of-the-mainstream test,” under which only nominees with views that are “unacceptably extreme” would be blocked. By contrast, he claims, Senate Republicans are now using a “disagreement test,” under which a senator who “strongly disagrees with a view expressed by a nominee, at any point in that nominee’s career, … should support a filibuster against the president’s choice.”

Sunstein’s contrast is hooey. Sunstein himself concedes at the very end of his article that Senate Democrats’ “use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But even that concession is far too crabbed. “Out of the mainstream” and “unacceptably extreme” are hopelessly malleable labels, not meaningfully objective standards. Democrats invoked the “out-of-the-mainstream” rhetoric to provide political cover for their attacks on any nominee their activist groups drove them to oppose.

It’s also clearly not the case that Senate Republicans are using the “disagreement test” that Sunstein imputes to them. If they were, they would be filibustering lots of nominees. Further, Republicans’ opposition to D.C. Circuit nominee Caitlin Halligan rests on a lot more than the single “disagreement” with her “participat[ion] in a well-publicized lawsuit against gun manufacturers.”

Far from doing anything “unprecedented,” Senate Republicans are simply following the path that Senate Democrats (with Sunstein’s support) paved, with their initiation ten years ago of the filibuster as a partisan weapon to prevent an up-or-down vote on judicial nominees. And Republicans are way behind Democrats on that path. Senate Democrats defeated some two dozen cloture petitions on ten of Bush’s appellate nominees, ultimately defeating five of those nominations and delaying by years the confirmations of the five others. So far, Republicans have defeated a mere four cloture petitions on only three of President Obama’s appellate nominees (and one of those petitions on one of the nominees, since confirmed, was designed only to apply the Thurmond Rule to prevent election-year action).

Sunstein also somehow finds it noteworthy that a district-court nomination was blocked by a home-state senator’s opposition. For better or worse, that’s simply a routine illustration of the Senate’s blue-slip policy (which I discussed more fully in this essay) in action.



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