Posted by Juan Non-Volokh:
The "Most Ideologically Extreme"?
Yesterday [1]Election Law Blog's Rick Hasen had [2]an op-ed in Roll
Call arguing that the filibuster is no more inherently "undemocratic"
than the Senate itself. Setting aside the merits of Hasen's
comparison, I was struck by the opening of his piece:
Democrats in the Senate have used the power of the filibuster to
block from office the 10 most ideologically extreme of President
Bush�s nominees for federal judgeships, while approving a vast
majority of his nominees.
This caught my eye because it is false.
Setting aside whether, say, filibustered Ninth Circuit nominee Carolyn
Kuhl is more or less "ideologically extreme" than, say, confirmed
Sixth Circuit Judge Jeffrey Sutton, or whether filibustered Fifth
Circuit nominee Justice Priscilla Owen is more or less "ideologically
extreme" than confirmed Fifth Circuit Judge Edith Brown Clement,
Senate Democrats have readily acknowledged that they are filibustering
several Bush nominees as payback for Republican obstruction of Clinton
nominees, and not because of ideology. Specifically, Senate Democrats
oppose confirmation of four nominees to the U.S. Court of Appeals for
the Sixth Circuit from Michigan -- [3]Henry Saad, [4]Richard Griffin,
[5]David McKeague, and [6]Susan Neilson -- because Republican Senators
blocked Clinton's Michigan nominees, including one who is related to
Senator Carl Levin. As detailed [7]here, and [8]here Michigan Senators
Levin and Debbie Stabenow said they would "blue slip" all Michigan
judicial nominees until Bush agrees to renominate two of Clinton's
nominees. When Senate Republicans disregarded the blue slips and
sought to confirm three of these nominees over the home-state
Senators' objections, the Democrats resorted to a filibuster.
Senators Levin and Stabenow have repeatedly stated that they are
concerned with "fairness" and not the ideology of these particular
nominees. As they [9]wrote to President Bush last year, they are
"willing to discuss any compromise offer that addresses the unfair
treatment of the two Michigan women previously nominated by President
Clinton to vacancies on the Sixth Circuit so that the tactic used to
deny them hearings does not succeed."
Whether their concerns are legitimate grounds for a filibuster -- or
whether Republican Senators' obstruction of Clinton's nominees was any
worse or less justified than Democratic obstruction of the first
Bush's nominees -- is a debate for another day. Here I merely seek to
correct the record as to why Senate Democrats are filibustering some
of President Bush's nominees, and to make clear that those
filibustered to date are not the "most ideologically extreme" of
Bush's nominees.
References
1. http://electionlawblog.org/
2. http://electionlawblog.org/archives/hasen-nuke.doc
3. http://www.usdoj.gov/olp/saad.htm
4. http://www.usdoj.gov/olp/griffin.htm
5. http://www.usdoj.gov/olp/mckeague.htm
6. http://www.usdoj.gov/olp/neilson.htm
7. http://www.nationalreview.com/york/york032003.asp
8. http://www.detnews.com/2002/politics/0206/28/politics-525646.htm
9. http://levin.senate.gov/newsroom/supporting/2004/070704president.mi.pdf
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