In what will no doubt be a long series of screeds from the Left, Slate’s Dahlia Lithwick complains of Republican senators’ “extraordinary hypocrisy” in filibustering the controversial nomination of Goodwin Liu. Lithwick’s argument is replete with sloppy thinking and misinformation:
1. For starters, the two positions that are most difficult, indeed impossible, to reconcile in a principled manner are the positions that Lithwick and others on the Left have adopted: namely, (1) that it was perfectly fine for Senate Democrats to filibuster President George W. Bush’s judicial nominees, but (2) that it is objectionable for Senate Republicans to filibuster President Obama’s nomination of Liu.
In order to obscure her own extraordinary inconsistency, Lithwick postures herself as a champion of the so-called Gang of 14 agreement in 2005. If Lithwick ever objected to the Senate Democrats’ unprecedented partisan resort to the filibuster of judicial nominees in 2003 and 2004—against, by my quick count, ten of President Bush’s nominees—I’d be very surprised. (In a rush today, I’ve done some quick, but not exhaustive, research. As usual, I will post any appropriate correction.)
Further, Lithwick radically misstates both the scope and effect of the Gang of 14 agreement. That agreement was limited by its terms to only three then-pending nominees and to future nominations only in the 109th Congress (2005-2006). Lithwick claims that Liu “is the first judicial nominee to be filibustered since 2005,” but what she means is that Liu is the first judicial nominee to be successfully filibustered since then.
Far from establishing a “détente,” the Gang of 14 agreement did not prevent 35 Democrats* from failing to support cloture on one of the pending nominees subject to the agreement and 33 Democrats** from failing to support cloture on another of them. Further, Democrats resorted to the filibuster, and obtained 25 negative votes, to try to stop the nomination of Samuel Alito to the Supreme Court. Only twelve Democrats voted for cloture in 2006 on the nomination of Brett Kavanaugh to the D.C. Circuit. And even when they had majority control of the Senate in 2007, only 13 Democrats voted for cloture on Leslie Southwick’s nomination to the Fifth Circuit. (Among those who viciously smeared Southwick: Lithwick’s Slate colleague, Emily Bazelon.) That’s some détente.
2. The charge of hypocrisy against Senate Republicans is lazy and meritless, for the simple reason that Democratic resort to the filibuster against Bush nominees dramatically altered the terrain.
Republican senators who opposed the Democratic filibuster of President Bush’s nominees can usefully be divided into two categories: (1) those who maintained (mistakenly, in my view) that the filibuster of judicial nominees was unconstitutional; and (2) those who maintained that the filibuster of judicial nominees was a very bad departure from established Senate practices.
a. Let’s begin with the second category. To maintain that some principle of consistency compels Republicans to continue to oppose the judicial filibuster after Democrats have repeatedly resorted to it is to ignore the changed circumstances and to require, as Senator Sessions has aptly put it, “unilateral disarmament” on the part of Republicans.
To develop the analogy: Assume that Nation A and Nation B are fierce rivals and that neither has nuclear weapons. Nation B makes clear that it wants to acquire nuclear weapons, and Nation A opposes that effort on the ground that Nation B’s acquisition would alter the status quo and lead to a dangerous escalation. Nation B goes ahead and acquires nuclear weapons. How would it conceivably be hypocritical for Nation A to then determine that it needed nuclear weapons?
b. As for the category of Republican senators who maintained that the Democratic filibuster of judicial nominees was unconstitutional: The authoritative body on this constitutional question, the Senate itself, has plainly concluded by its practices that the filibuster is constitutionally permissible. Although it seems to me permissible for a senator to continue to abide by his own contrary view, I don’t see why, alternatively, he can’t view the Senate as having authoritatively settled the question adversely to his view.
Again, consider an analogy: Let’s say that the Supreme Court has adopted a reading of Congress’s Commerce Clause powers that a particular senator believes is overly expansive. Must the senator abide by his own more restrictive view? Or is he free to recognize that the Supreme Court’s reading meaningfully defines the legal landscape and to operate within that landscape? Or let’s say that a president disagrees with a Supreme Court decision that strikes down a federal criminal statute on constitutional grounds. Must the president continue to insist that federal prosecutors enforce that statute? I’d be very surprised if anyone flinging the hypocrite label at Republican senators would seriously maintain that the senator and the president in these hypotheticals are hypocrites if they choose to abide by the Supreme Court’s rulings.
c. Further, as I have recently explained, any Republican senator who wants to work towards a long-term bar against filibustering judicial nominees would sensibly recognize that unilateral disarmament by Republicans would do nothing to deter Democrats from filibustering Republican nominees. As with the independent-counsel statute, the only sensible choice for Republican senators who want to get rid of the filibuster in the long run is to inflict its costs against Democratic nominees.
Bottom line: It’s the Left that can’t justify its opposition to Senate Republicans’ use of the filibuster against Liu—a filibuster, it’s worth noting, that Democrat Ben Nelson joined in.
* Of the 35, 32 voted against cloture, and 3 didn’t vote (the functional equivalent of a vote against).
* 32 nays and one not voting.