Charles Krauthammer’s op-ed in today’s Washington Post
is notable for two things. First he backhandedly acknowledges that Republicans have attempted judicial filibusters before, something that the GOP has consistently tried to mislead the public about.
First the GOP line was: We have never supported a judicial filibuster. Next the line was: Well, we have never tried filibustered a nominee who had majority support (Abe Fortas, although even this is fact is certainly open to debate.) Now there is the realization that in 2001, 13 GOP Senators voted to filibuster one of President Clinton’s Circuit Court nominees, Marsha Berzon. (You can see the vote tally here
.) So apparently those Senators (including Sens. Allard Brownback, Bunning, Inhofe, and Shelby) don’t have such a problem with the filibuster. (Of course, now Sen. Allard seems to think that filibusters are helping terrorists
, I guess 9/11 did change everything.)
The second thing that the Krauthammer article is notable for is his duplicity in arguing that judicial nominees have never been upheld in this way before. While he is technically correct, he also certainly knows that the only reason the Democrats are employing the filibuster is because the GOP has done away with the procedural mechanisms that Senators in the majority and in the minority used to employ, such as blueslips, to place a hold on judicial nominees.
There can be no debate that both side have used parliamentary tactics, or the Senate rules, to keep nominees from getting the “up or down” vote. (Hence the 50 or so nominees that never got a vote during the Clinton years.) The Dems howled during those years and the GOP never really seemed to care. When the GOP got rid of some of those parliamentary tactics in the past few years, and the Dems had to resort to the filibuster. My guess is if the blueslip procedure was back in place, the Dems would have a much harder time keeping all of their guys (and gals) in line for a filibuster.
I don’t see real distinction between blueslips and the filibuster – both are parliamentary tactics which are used to frustrate the chance for an “up or down” vote. As I said before, it is the “every nominee gets an up or down vote” which I believe is the new theory that is being intoduced, and with dubious Constitutional authority.
This is not a Constitutional crisis, it is a a power struggle in which both sides and their supporters are showing hypocrisy. But this rule change will have a long lasting effects. And the aftershocks will not always work in the GOP’s favor in the future.
After all, the GOP won’t always have the White House and the Senate. By getting rid of parliamentary roadblocks to judicial nominees, they are throwing away a right that they may have to resort to when they find themselves back in the minority.
The question every Republican needs to ask before voting for the nuclear option: Is Janice Rogers worth whatever 10 Judges President Hillary Clinton might appoint?