Media Matters (which describes itself as a “progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media”) complains that articles in Politico and Roll Call on the Republican senators’ recent letter to President Obama on judicial nominations failed to note that “several of those Republicans” now raising the threat of a filibuster of judicial nominations “previously challenged the constitutionality of filibustering judicial nominees.” But Media Matters’ complaint is defective in two elementary respects:
First, Media Matters purports to offer specific evidence that eight Republicans have previously “said or suggested that filibustering judicial nominees is unconstitutional.” But only the statement of one of the Republicans clearly asserts the unconstitutionality of the filibuster (and whether that was a considered position or a verbal misstep is unclear), and, fairly read, only one other statement seems to suggest it. There are of course ample grounds to oppose the use of the filibuster on judicial nominees without taking the position that it’s unconstitutional, and that’s the approach of the rest of the statements. (I’ve long made clear that I believe that the filibuster of judicial nominees is constitutionally permissible but a bad innovation.)
Second, even as to any Republican senators whose considered position was that the filibuster of judicial nominees is unconstitutional: It’s one thing to threaten collective action, including possibly the filibuster, to make sure that the blue-slip privilege isn’t trampled. It’s something quite different to use the filibuster, in violation of longstanding Senate practice, for the very purpose of defeating a judicial nominee. There is no inconsistency in supporting the former and opposing the latter. And insofar as considerations of practice and purpose informed a senator’s judgment (mistaken, in my view) that Senate Democrats’ filibuster of judicial nominees was unconstitutional, that senator might reasonably reach a different conclusion about the Republicans’ threatened use.