Posted by Jonathan Adler:
Filibusters and Blue Slips (Again):
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237645795
A common argument making the rounds is that Senate Democrats only
filibustered some of President Bush's judicial nominations because
then-Senate Judiciary Committee Chairman Orrin Hatch violated Senate
traditions with regard to blue slips. Let's assume for the moment that
the charge against Hatch is accurate, does this explain the filibuster
of Bush nominations? No. Filibusxters were used to stall or block the
confirmation of nominees for which blue slips were completely
irrelevant, including Miguel Estrada and Priscilla Owen. Estrada was
nominated to the U.S. Court of Appeals for the D.C. Circuit, so there
was no blue slip issue whatsoever. Owen was nominated to a Texas seat
on the U.S. Court of Appeals for the Fifth Circuit, and both Texas
Senators strongly supported her confirmation. Why, then, were they
filibustered? Here's the [1]case made by the NYT editorial board at
the time:
Filibustering Judge Owen's confirmation would send the Bush
administration two important messages: the president must stop
packing the courts with ideologues, and he must show more respect
for the Senate's role. . . .
The filibuster is not a tool to be used lightly. But the Senate has
been right to use it against the nomination of Miguel Estrada, who
is hiding his views on legal issues. It should do the same to stop
the once-rejected Judge Owen, and tell extreme conservatives in the
Bush administration to stop trying to hijack the federal judiciary.
The other odd thing about the "Senate Democrats were just defending
blue slips" argument is that it would actually seem to justify Senate
Republican use of a filibuster for the same purpose. After all, if
filibusters were an acceptable way to enforce the traditional blue
slip policy before, they should no less acceptable today. And even if
Senate Republicans opposed such filibusters in the past, would it be
wrong for them to acquiesce to the new norm created by Senate
Democrats? They opposed the fiilibuster for judicial nominations, but
they lost that fight. Save for the few who (wrongly) maintained that
such filibusters were "unconstitutional" (as opposed to
"extraconstitutional," undemocratic, or merely unwise), I am not even
sure the hypocrisy charge sticks all that much if the alternative is
"unilateral disarmament."
As I've made clear repeatedly, I think Senate Democrats were wrong to
filibuster Bush judicial nominees, particularly on ideological
grounds. I further believe Senate Republicans would be wrong to
respond in kind, even to defend the blue slip. I believe filibusters
have no place in the judicial confirmation process. A Senate minority
should not block the confirmation of judicial nominees who enjoy
majority support. Period. But I am not sure those who supported the
use of such tactics have much basis to complain now that the shoe is
on the other foot.
References
1.
file://localhost/var/www/powerblogs/volokh/posts/http%3A%2F%2Fwww.nytimes.com%2F2003%2F04%2F17%2Fopinion%2Ffilibustering-priscilla-owen.html
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