Bench Memos

Geoffrey Stone’s Partisan Hackery on Filibusters

In a Huffington Post piece titled “Judicial Filibusters: Partisanship Run Amok,” the reliably ridiculous law professor Geoffrey R. Stone displays his own partisan hackery. Consider:

1. Here’s Stone’s revisionist—and wildly inaccurate—history of the filibuster of lower-court nominees:

The filibuster was not used against a Court of Appeals nominee until 1980, when Senate Republicans unsuccessfully tried to block Jimmy Carter’s nomination of (future Supreme Court Justice) Stephen Breyer to the Court of Appeals. Although the judicial filibuster has been used increasingly since then, by Democrats and Republicans alike, it still has been used only three times in all of American history to block a straight up-or-down vote on Court of Appeals nominees—before [last week’s vote on Goodwin Liu].

Before unpacking the deceptions, let me emphasize the elementary point, as the Congressional Research Service has put it in its publication “Cloture Attempts on Nominations,” that it “would be erroneous … to assume that cases in which cloture is sought are the same as those in which a filibuster occurs.” Further, as has been widely recognized, there is a difference between blocking cloture in order to prevent undue haste on a matter and blocking it in order to prevent any action, no matter how timely. Therefore, anyone discussing filibusters owes his readers careful attention to the facts.

a. By Stone’s account, “Senate Republicans” initiated the filibuster against a court of appeals nominee when they “unsuccessfully tried to block” President Carter’s nomination of Stephen Breyer to the First Circuit. Stone somehow doesn’t see fit to mention that Carter didn’t even nominate Breyer until November 13, 1980—days after Ronald Reagan has defeated Carter’s bid for re-election and after Republicans had won control of the incoming Senate. [Addendum: Someone who has researched the Breyer cloture vote informs me that there were procedural grievances over the process used to vote his nomination out of committee and over the fact that he was rushed ahead of other nominees.] So it’s highly dubious that voting against cloture less than a month later (on December 9, 1980) would qualify as a filibuster. Further, Stone doesn’t see fit to mention that Senate Republicans divided sharply on the vote (16 voted for cloture—including Republican whip Ted Stevens—versus 24 against, with one not voting). Nor does he note that the opposition included Democrats: three Democrats (including Inouye and Hollings) voted against cloture (and three didn’t vote).

b. Stone then buries Senate Democrats’ unprecedented partisan and wholesale resort to the filibuster of ten of President George W. Bush’s judicial nominees in 2003 and 2004 with the assertion that the “judicial filibuster has been used increasingly since [1980], by Democrats and Republicans alike.”

c. I have no idea where Stone comes up with his claim that the filibuster had been used, prior to last week’s vote on Liu, “only three times in all of American history to block a straight up-or-down vote on Court of Appeals nominees.” In 2003 and 2004, Democrats, blocking cloture on some 21 separate votes, prevented a straight up-or-down vote on ten of President Bush’s appellate nominees. Five of these nominees (Estrada, Pickering, Kuhl, Myers, and Saad) were never confirmed, and the other five were confirmed only after the significant Republican gains in the 2004 election and the threat of cloture reform (which triggered the Gang of 14 agreement).

2. Did Stone ever object to Democrats’ resort to the filibuster? He is tellingly silent on the point. And no wonder: In 2005, in a Huffington Post piece titled “Filibuster and the Seven Dwarfs,” Stone vigorously defended the filibuster of judicial nominees as “a traditional responsibility of the Senate minority” and opposed Republican efforts to reform the cloture rules to eliminate the judicial filibuster.

I emphasize again that it is the Left’s positions (including Stone’s)—wholesale Democratic filibusters are fine, a single Republican filibuster is beyond the pale—that are irreconcilable and that provide conclusive proof of what Stone calls “partisanship run amok.”

3. Stone finds it meaningful to defend Goodwin Liu’s record by reciting his resume, citing the small handful of Liu’s conservative supporters, and contending that Liu’s “right-wing critics lift carefully-selected passages out of context from his writings to distort his positions.” I’ve already amply demonstrated that some of Liu’s conservative supporters (most prominently, alas, Ken Starr) plainly are unfamiliar with his record or otherwise badly confused. Moreover, it’s striking that Stone doesn’t identify a single distortion, much less attempt to take issue with the meticulously documented case that I’ve made against Liu. Nor does he even mention what any of Liu’s controversial views are. A less substantive defense would be difficult to imagine.

4. Stone contends that Liu “would clearly be confirmed” on a straight up-or-down vote. That’s far from clear. Nor, of course, would it distinguish most or all of the nominees that Democrats filibustered. There would appear to have been at least 49 votes against Liu’s confirmation, with a number of additional negative votes still available. (I’m told that Murkowski, the one Republican who voted for cloture, would have voted against Liu’s confirmation. On the Democratic side, in addition to Ben Nelson, Jim Webb (who voted for cloture) has said that he would vote against Liu’s confirmation.)

(Without bothering to provide evidence, Stone also asserts that “some Republicans invoke the Bork nomination as a relevant precedent” for filibustering Liu, and he then triumphantly declares such an argument “completely wrong-headed” since Bork “was not the target of a filibuster.” But if an argument in the terms that Stone posits has been made, I haven’t heard it. A quick search of the Congressional Record for last week indicates that Bork’s name was never mentioned during the debate over Liu.)

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