Bench Memos

My Perspective on Filibuster Abolition—Part 1

Some thoughts:

1. Yes, it’s galling that Senate Democrats can dish it out but can’t take it. Harry Reid, for example, voted against cloture at least 25 times on 13 different nominees of George W. Bush, yet he’s outraged that Republicans defeated a grand total of seven cloture motions on Obama nominees. As for D.C. Circuit nominees specifically:

a. President Bush nominated the superbly qualified Miguel Estrada  to the D.C. Circuit on May 9, 2001. Senate Democrats did not give Estrada a hearing until September 2002, and they then held his nomination in committee. After they lost control of the Senate in the 2002 elections, they unleashed the unprecedented use of the filibuster against the Estrada nomination and defeated seven cloture petitions. In September 2003, 848 days after his nomination, Estrada withdrew.

b. Bush nominated another outstanding candidate, Peter B. Keisler, to the D.C. Circuit on June 29, 2006. After Senate Democrats took control of the Senate, they never moved Keisler’s nomination out of committee. Keisler’s nomination died some 2-1/2 years after it was made.

c. Bush did succeed in getting four of his nominees confirmed (a net of three, as John Roberts was elevated to Chief Justice), but only after extended delays and massive obstruction. Roberts’s nomination took 729 days to confirmation. Janice Rogers Brown’s took 684 days and encountered two cloture defeats. Thomas Griffith’s took 400 days. And Brett Kavanaugh’s took 1,036 days, including an unsuccessful filibuster effort.

Senate Republicans did filibuster President Obama’s nomination of Caitlin Halligan. But the delays in filling the D.C. Circuit seats owe far more to Obama’s incompetent Keystone Kops escapades. Sri Srinivasan’s confirmation earlier this year came a mere six weeks after Senate Judiciary Committee chairman Pat Leahy afforded him a Judiciary Committee hearing. Yet less than six months after Obama made three simultaneous nominations to the D.C. Circuit, Senate Democrats decided to go nuclear.

As I elaborated in point 2 here, the hypocrisy charge applies with far more force against Senate Democrats (and voices on the Left like the New York Times) than against Senate Republicans, as Democratic resort to the filibuster against Bush nominees dramatically altered the terrain.

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