The Senate is expected to vote this week on whether to confirm several of President Obama's nominees for federal judgeships. Many Senators are ready to vote -- yes or no -- on each nominee. Some of the Republican senators, however, don't want any vote at all.
The threatened delay tactic -- a filibuster -- has occasionally been used by Senators who worry they might lose a vote. When Democratic Senators threatened to filibuster President George W. Bush's judicial nominees, he said they did not have a duty to vote in favor of his nominees -- but they did have a duty to vote.
A Republican filibuster would be surprising, since many Republicans are on record against filibustering judicial nominees. Take Senator John Cornyn of Texas, who wrote in a 2004 law review article: "Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate... Filibusters are by far the most virulent form of delay imaginable."
Senator Judd Gregg echoed these concerns in the Portsmouth Herald in 2005:
"[N]ominations have the right to an up or down vote in the Senate, and the filibustering of these nominations is inconsistent with over 200 years of tradition in the Senate and distorts our system of checks and balances."
And Senator Lamar Alexander in the Congressional Chronicle in 2005: "I pledged, then and there, I would never filibuster any President's judicial nominee, period. I might vote against them, but I will always see they came to a vote."
And Senator Orrin Hatch in a Senate floor statement in 2007: "We may not use our role of advise and consent to undermine the President's authority to appoint judges... It is wrong to use the filibuster to defeat judicial nominees who have majority support, who would be confirmed if only we could vote up or down. That is why I have never voted against cloture on a judicial nomination."
And Senator Lisa Murkowski, speaking before the Juneau Bar Association this year, criticized the legislative branch for holding the "judiciary hostage" and said Senators should vote against nominees they don't like instead of holding up the process.
For the reasons stated by these leading Republican senators, filibustering judicial nominees is wrong. Moreover, the lame duck session does not provide Republicans any excuse for suspending this principle. Since 1933, when the 20th Amendment set January 3 as the date for congressional turnover, there have been 70 lame duck judicial confirmations; 64 were of Republican nominees, and 15 occurred after Republicans lost seats in the Senate. Moreover, the recent elections focused on jobs and the economy, not judges. Republicans have no midterm mandate to block qualified nominees.
Sticking to principle is not only the right thing to do; it is also good politics for Republicans. First, the public shares the view that the filibuster is wrong. It is one thing to vote no; it is another to prevent other people from voting because they might vote yes.
Second, if Senators support a filibuster after denouncing them, it would be hard for anyone to trust what they say again. Their past opposition to filibusters would be seen as mere partisan politics. Voters respect politicians with principle; they are tired of hypocrisy.
Third, what goes around comes around. Someday Republicans will again control the White House and Senate, as they did for much of President Bush's two terms. When a Republican President nominates conservatives to the federal bench, Democrats will look for an excuse to prevent a Senate vote. Republican Senators who filibuster now give Democrats an excuse to filibuster later.
The result could be a devastating set-back for Republicans, whose successes in putting conservatives on the bench have historically outpaced Democratic successes in getting liberals confirmed. Consider, for example, the well-known conservatives among successful Bush nominees: John Roberts, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Brett Kavanaugh, Mike McConnell, and Jeff Sutton, to name a few. The failed nomination of Miguel Estrada was the exception rather than the rule. Democrats justified their obstruction then by pointing to Republican efforts to block President Clinton's nominees, including Richard Paez, whose four-year confirmation battle was the longest ever for a circuit court nominee.
Republicans' hard-fought battle during the Bush Administration to move away from this "tit-for-tat" toward an effective confirmation process would be lost if Democrats are now given an excuse to block future Republican nominees. Republican Senators could never again with a straight face say that filibusters are wrong. In confirmation politics, two wrongs don%e2t make a right; they just beget more wrongs.
Fourth, there is no compelling reason to vote against President Obama's nominees, much less to prevent a vote on them. The nominee we hear about most often -- Goodwin Liu -- is mischaracterized as a radical liberal (perhaps because he teaches law at Berkeley or because he has written about how the law affects minority groups). Liu's record, however, puts him well within the legal mainstream, and he has emphasized objectives shared by conservatives such as fixing substandard public schools and allowing parents more school choice. Moreover, his qualifications earned him the highest rating from the American Bar Association as well as endorsements from conservatives such as Ken Starr, Clint Bolick, and John Yoo. He would fill a "judicial emergency" seat that has been vacant more than 675 days.
If Liu's nomination is the best President Obama can do to infuriate the right, the President is not trying very hard. Diatribes against Liu fill air time on talk radio but have nothing to do with the kind of judge he would likely be. Blocking him or any of the 22 other Obama nominees now awaiting a vote is not worth abandoning the principle that Republican Senators have been acclaiming for years: Senators should vote their conscience on judicial nominees, but they should vote.