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Bench Memos

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Root Causes



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With all the current analysis of the Senate teetering at the precipice of judicial filibuster reform, few reporters have traced the roots of the Democratic decision to ratchet up their tactics against President Bush’s judicial nominees. The filibuster is just the latest escalation in the war waged against Robert Bork, Clarence Thomas, and some of President Bush 41’s appellate nominees via committee procedure.

The latest chapter–captured in May 2001 by the New York Times–begins with a retreat at which law professors Lawrence Tribe and Cass Sunstein, along with the National Women’s Law Center’s Marcia Greenberger, addressed Senate Democrats. The trio argued the federal courts were at a critical juncture and that Democrats needed to “change the ground rules” on judicial confirmations.

Soon Sen. Chuck Schumer began to publicly advocate that ideology be openly considered by senators in their advice and consent role–reversing the tradition of deference to the president in the judicial selection process–and demanding a pre-nomination veto. Tribe, Sunstein, and Greenberger all testified at Schumer’s hearings, advocating for judicial ideology consideration.

From the Bush 43 administration’s outset, the majority Democrats had slow walked the appellate confirmation process. They turned a corner by defeating Charles Pickering in the Judiciary Committee on a party line vote (which, incidentally led to the Committee for Justice’s formation).

When the Democrats lost the Senate majority in November 2002, they made the final, radical decision: to change the ground rules on judicial confirmations via filibuster of Miguel Estrada because–as we learned subsequently from discovered strategy memos–”he is dangerous” because “he is Latino” and “the White House seems to be grooming him for the Supreme Court.”

So, when recounting why the Senate is at daggers drawn, teetering at the edge of institutional bedlam, let’s give credit where it’s due: to Lawrence Tribe, Cass Sunstein, and Marcia Greenberger.



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