Flashback: Media conservatives denounced judicial filibusters

››› ››› CHRISTINE SCHWEN

Media Matters for America has compiled examples of conservative commentators denouncing the use of filibusters to block President Bush's nominees to the Supreme Court or lower courts, including commentators who claimed or suggested that such filibusters violated the Constitution.

As the process begins for selecting a replacement for retiring Supreme Court Justice David Souter, Media Matters for America has compiled examples of conservative commentators denouncing the use of filibusters to block President Bush's nominees to the Supreme Court or to lower courts. Some of these media figures, including Rush Limbaugh, claimed or suggested that such filibusters violated the Constitution.

  • On the December 24, 2004, edition of his radio show, discussing Democrats' filibusters of Bush's lower court judicial nominees, Limbaugh stated: "This filibuster, as you know, they're filibustering these nominations which requires essentially 60 votes for a judge to be confirmed. The Constitution says nothing about this. The Constitution says simple majority, 51 votes." Limbaugh later added:

If the Senate, which has the constitutional right to make its own rules, decides that it wants to require a super-majority vote to pass certain bills such as tax bills -- and they can do that. They can write those rules all day long -- such a rule would not infringe on presidential power. But to do so when it affects a presidential power, which takes us into a separation of powers issue, like the appointment of judges, that is unconstitutional, in my layman's view.

  • Rich Lowry wrote in a May 13, 2005, National Review column:

The judicial filibuster isn't a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it.

[...]

During the contentious fight over Clarence Thomas's nomination to the Supreme Court in 1991, Democrats who were harshly opposed to him still refused to filibuster his nomination, even though they would have had the votes to do so. Democratic Sen. Patrick Leahy called a filibuster against Thomas "nonsense" and a "crazy idea," declaring himself "totally opposed to a filibuster."

Democrats point to a filibuster of Lyndon Baines Johnson's 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today's filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn't have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.

[...]

Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition.

  • On the March 2, 2005, edition of Hannity & Colmes, Sean Hannity said: "There are seven specific instances in the Constitution where they call for a supermajority. I believe it's unconstitutional to filibuster. It is not about advice and consent now to ask for a supermajority on judicial nominations. I believe that is not constitutional." Similarly, on the February 18, 2005, edition of Hannity & Colmes, Hannity asserted of the possibility of a Supreme Court nomination: "We're about to have one of the great political battles of our time. And we have this issue ... there are seven specific instances where we need a supermajority. Advice and consent is not one of those instances. But yet the Democrats continue to filibuster the president's judicial selections. When the Supreme Court vacancy occurs, the Democrats for sure are going to filibuster. What should the Republicans do?"
  • In a May 9, 2005, Weekly Standard column headlined "Break the Filibuster," Fox News contributor and Weekly Standard editor Bill Kristol asserted: "More important, perhaps, the customary practice of not filibustering presidential nominees -- whether for the judiciary or the executive branch -- is not a mere matter of custom. It is rooted in the structure of the Constitution. While the filibuster of judges is not, in a judicially enforceable sense, unconstitutional, it is contrary to the logic of the constitutional separation of powers."
  • In an April 28, 2005, Washington Times column, chief political correspondent Donald Lambro asserted: "But applying the filibuster rule to prevent the Senate from carrying out its constitutionally granted authority to approve or disapprove each judicial nominee clearly violates our nation's governing document."
  • In a January 11, 2005, Washington Times op-ed (retrieved via Nexis), nationally syndicated radio host Mark Levin asserted: "The Constitution grants the Senate authority to give its advice and consent to the president's nominations. The Senate also has the authority to set its own internal operational rules. Some contend that by conflating the two, as few as 41 senators are free to impose a super-majority requirement on the full Senate's execution of its advice and consent power and, ultimately, on the president's judicial nomination power. This approach has no support in the Constitution or in the debates during the Constitutional Convention. And hitherto, no Senate minority, of any party, has endorsed this interpretation."

From the December 24, 2004, edition (subscription required) of Premiere Radio Networks' The Rush Limbaugh Show:

If the Senate Republicans are not prepared to end the unprecedented use by Senate Democrats of the filibuster rule against the president's judicial nominees, the president is going to have a real tough time getting these re-nominated candidates -- and for that matter -- Supreme Court nominees confirmed. This filibuster, as you know, they're filibustering these nominations which requires essentially 60 votes for a judge to be confirmed. The Constitution says nothing about this. The Constitution says simple majority, 51 votes. But because they're invoking the filibuster, which, you know, the Senate can make up its own rules but not when they impose on the Constitution and not when they impose on the legislative branch. Separation of powers here. But if nobody stops them, they're going to keep getting away with it. It's up to the Senate Republicans to stop them.

[...]

And one last point, No. 6. If the Senate, which has the constitutional right to make its own rules, decides that it wants to require a super-majority vote to pass certain bills such as tax bills -- and they can do that. They can write those rules all day long -- such a rule would not infringe on presidential power. But to do so when it affects a presidential power, which takes us into a separation of powers issue, like the appointment of judges, that is unconstitutional, in my layman's view. But I think this is something that's going to have to stop, this judicial filibuster which was started by Daschle. He's gone. Dusty Harry has vowed to continue it and these guys are out there making the same noises and same the same outrageous things about these nominees and they don't care whose lives they destroy. And through it all, they're going to be demonstrating, once and for all, just who they really are, no matter what kind of linguistics help they get from this guy, [Professor George] Lackoff [sic: Lakoff], out in Berkeley. They can, every other day of the year, they can start, you know, trying to make changes about the way they speak. But their actions in this filibuster business, the things they say about these men and women who were nominated to the court, will establish once and for all just exactly who they are. And got a note here. Ralph Neas, People For the American Way, one of the members of the civil rights coalition that sits firmly at the table of power the Democrat Party has got this massive e-mail, blast e-mail campaign going on out there. "Help defend the Supreme Court from a religious right takeover." So here we go again. What we have is the religious bigotry of the left immediately on display. They think this is going to work.

From the March 2, 2005, edition of Fox News' Hannity & Colmes (transcript retrieved from Nexis):

HANNITY: Senator, one last question before we let you go here. There are seven specific instances in the Constitution where they call for a supermajority. I believe it's unconstitutional to filibuster. It is not about advice and consent now to ask for a supermajority on judicial nominations. I believe that is not constitutional. There's been a lot of talk about what we describe as the "constitutional option," which is that the Republicans would unite and vote, and there would be an up-or-down vote on all of the judicial nominations. Do you think that's the right thing to do? Will you support [then-] Senator [Bill] Frist [R-TN] if he does it?

SEN. JOHN McCAIN (R-AZ): I'm worried about shutting down the Senate. The Republicans did hold Clinton nominees in committee. They didn't vote on the floor. They just didn't let them out of committee. I wish that we could sit down with the Democrats and work this out without shutting down the United States Senate, which the Democrats can do, which I think would be harmful to our efforts.

ALAN COLMES (co-host): Senator, thank you very much.

From the February 18, 2005, edition of Fox News' Hannity & Colmes (transcript retrieved from Nexis):

HANNITY: But first, ailing Chief Justice William Rehnquist will be absent from the bench next week when the Supreme Court resumes, but he's promising to read arguments and vote on decisions. How will Rehnquist's condition affect the future of the Supreme Court?

Joining us now from Washington is the author of Men in Black: How the Supreme Court is Destroying America, Mark Levin. Mark, welcome back.

LEVIN: Thank you, Alan.

[...]

HANNITY: Hey, Mark, by the way, first of all, congratulations. Your book is now debut at number four on The New York Times best-seller list. Congratulations to you.

LEVIN: Thank you. I appreciate it.

HANNITY: I know it's number-one non-fiction on Amazon.com. And we're very proud of you. You know, one of the things you mention, Mark, is you talk about all the instances where these justices have been wrong in the past, not only wrong, morally wrong, at times morally bankrupt, and even, I think, the term corrupt could be used. These men are not -- they are men. They're not gods. They're not infallible.

LEVIN: Well, I don't know why we bow down to any branch of government, especially one that simply has nine lawyers on it who are unelected and unaccountable in most cases.

Let's keep in mind, this is an institution, in 1856, that was on the wrong side of slavery. It decided that the free territories wouldn't be free, despite what Congress had done in the Missouri Compromise. This is an institution, in 1896, that ruled separate but equal is equal. That's not what the Equal Protection Clause of the 14th Amendment says. This is an institution, in 1944, that upheld FDR's internment of 110,000 Japanese- Americans. By the way, the governor of California, Earl Warren, a great liberal icon. No, this is a very imperfect institution. On the three greatest of our history, it was wrong.

HANNITY: One of the great things you do in Men in Black, which is very educational, you go through a list of past justices and some of the corruption that has been involved in the court and some of their backgrounds. And I think it's important for people from a historical perspective to see this.

We're about to have one of the great political battles of our time. And we have this issue -- and you have pointed out in the book and elsewhere -- there are seven specific instances where we need a supermajority. Advice and consent is not one of those instances. But yet the Democrats continue to filibuster the president's judicial selections. When the Supreme Court vacancy occurs, the Democrats for sure are going to filibuster. What should the Republicans do?

LEVIN: Well, you know, the advice and consent role is one that the whole Senate has, not just Chuck Schumer and Ted Kennedy and the Kabbalah leftists whose are instituting this unconstitutional filibusters.

The fact of the matter is, they will institute a filibuster because the court is a last bastion of liberalism. They can't win elections, so they want to rule by judicial fiat. The Republicans need to lead and change the filibuster rule. Stop threatening it, just end it.

COLMES: All right, Mark. Thank you for being with us. Congratulations on your book.

From Lambro's April 28, 2005, Washington Times column:

The fierce political battle over President Bush's judicial nominations may soon reach a climax, as talk of a compromise swept through the Capitol this week.

But with each side escalating its rhetoric to a fever pitch and their loyal allies mounting a multimillion-dollar ad campaign, the possibility of a bipartisan deal seemed problematic at best.

The whole business has been clouded by a confusing fog of issues, from religious beliefs to constitutional checks and balances, that seem to have strayed from the central rulemaking issue before the Senate: Should a minority of senators be allowed to prevent a simple up-or-down vote on judicial nominees?

The Democrats believe they have the right to use -- I would say abuse -- the filibuster rule for unlimited debate in confirmation proceedings for the sole purpose of preventing a vote, unless a supermajority of 60 senators agrees to end that debate and proceed to a roll call vote.

But the Constitution gives them no such right and for more than 200 years the Senate, with virtually no exceptions, has brought a president's judicial nominees up for a vote in the Judiciary Committee, and if reported to the full Senate, for an up-or-down vote by a simple majority.

[...]

The genius of our representative form of government is in part due to the legislative hoops and hurdles the Founding Fathers created to make it difficult for bad legislation to become law.

Unlimited debate, by which a senator may hope to kill or at least stall a bill or amendment to extract some change in its provisions, was put into the Senate's rules for just this reason.

But applying the filibuster rule to prevent the Senate from carrying out its constitutionally granted authority to approve or disapprove each judicial nominee clearly violates our nation's governing document.

[...]

This is a parliamentary debate over the abuse of the rules, one the Republicans threaten to end by inserting a little language that just tells the Democrats they no longer will be able to deny the Senate majority's right to vote on federal judgeships.

At stake are 10 of President Bush's nominees, most of them trapped in filibuster limbo for years merely because they are too conservative for the Democrats' more liberal tastes.

But something deeper is at stake here, too, and that is our democratic system of government and whether we will allow abuse of the legislative rules to impede a president's election mandate and the full and fair disposition of constitutionally granted presidential powers to appoint judges.

Mr. Bush and the Senate's Republican majority are not demanding anything extraordinary here. They simply want the right to vote on these nominations, up or down, and the Democrats don't because they lack the votes to defeat them.

From Levin's January 11, 2005, Washington Times op-ed:

"The Democrat filibuster of judicial nominees in the Senate is unprecedented. Unfortunately, even a handful of conservatives treat these filibusters in the context of political calculations rather than unconstitutional abuses of power. Whatever the politics of ending the Senate's judicial filibusters, and one can only speculate, defending the Constitution is paramount.

Liberal Yale law professor Bruce Ackerman, among the first and most prominent voices urging Senate Democrats to use the filibuster, argued incorrectly that in 2000 Supreme Court justices "put their man in the White House." And "[b]y intervening in ... the election, the conservative majority removed the American people's check on a runaway court." Mr. Ackerman argued that there "should be a moratorium on Supreme Court appointments until the American people return to the polls in 2004. [I]t only takes 40 senators to block any appointment to the court. Senators should use this power to force President Bush to demonstrate that he can win re-election in 2004 without the court's assistance." The Senate Democrats are going further than even Mr. Ackerman urged, using the filibuster rule to obstruct broadly the president's constitutional authority to appoint judges. And they have no intention of stopping their filibusters despite Mr. Bush winning a majority of the popular and Electoral College vote. Their purpose is a reverse packing of the judiciary. By denying the president numerous key appointments to vacancies on the federal bench, the judiciary grows increasingly activist due to the remaining numerous Clinton appointees.

The Constitution grants the Senate authority to give its advice and consent to the president's nominations. The Senate also has the authority to set its own internal operational rules. Some contend that by conflating the two, as few as 41 senators are free to impose a super-majority requirement on the full Senate's execution of its advice and consent power and, ultimately, on the president's judicial nomination power. This approach has no support in the Constitution or in the debates during the Constitutional Convention. And hitherto, no Senate minority, of any party, has endorsed this interpretation.

Posted In
Government, Nominations & Appointments
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