Bench Memos

On Filibustering Judicial Nominees—Part 2

Not surprisingly, lots of commentators have lazily condemned as hypocritical the effort by various Republican senators to filibuster the Seventh Circuit nomination of David Hamilton.  (The Washington Post’s editorial “Giving hypocrisy a bad name” and Dana Milbank’s column are typical examples.)  Although I disagree with the filibuster effort (for the reasons explained in my Part 1), I think that the hypocrisy charge is meritless.

Republican senators who opposed the Democratic filibuster of President Bush’s nominees and who supported the Hamilton filibuster 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. 

Let’s begin with the second category (which I believe is much more numerous than the first).  The simple response to the hypocrisy charge is that the Democratic resort to the filibuster dramatically altered the terrain.  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 aptly puts it, “unilateral disarmament” on the part of Republicans.  (Again, I am not arguing in favor of the Republican use of the filibuster; I am merely explaining why that use is not hypocritical.)

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?

As for the category of any Republican senators who maintained that the Democratic filibuster of judicial nominees was unconstitutional and who supported the Hamilton filibuster:  The authoritative body on this constitutional question, the Senate itself, 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.