Politico, Roll Call ignored GOP flip-flops on filibustering judicial nominees

On March 2, the Politico and Roll Call (subscription required) both reported on a letter sent by all 41 Senate Republicans to President Obama stating that if they "are not consulted on, and approve of, a nominee from our states," they would filibuster judicial nominations -- but neither article noted that several of those Republicans previously challenged the constitutionality of filibustering judicial nominees. The letter stated: "Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee." But among the signatories were several senators, including Sens. Orrin Hatch (UT), Sam Brownback (KS), Chuck Grassley (IA), John Cornyn (TX), Jeff Sessions (AL), James Inhofe (OK), Tom Coburn (OK), and Pat Roberts (KS), who had previously said or suggested that filibustering judicial nominees is unconstitutional.

• In a January 12, 2005, op-ed posted on National Review Online, Hatch, a former chairman of the Senate Judiciary Committee, wrote: "Judicial nominations will be one of the most important issues facing the Senate in the 109th Congress and the question is whether we will return to the tradition of giving nominations reaching the Senate floor an up or down vote. The filibusters used to block such votes have mired the judicial-confirmation process in a political and constitutional crisis that undermines democracy, the judiciary, the Senate, and the Constitution."

• In a July 25, 2005, op-ed posted on his website, Brownback wrote: "Finally, neither filibusters nor supermajority requirements have any place in the confirmation process. Those tactics of obstruction should become the historical relics they deserve to be. The country deserves, and the Constitution demands, a prompt, thorough debate and a fair up-or-down vote on Judge Roberts' nomination to the Supreme Court, and I look forward to being an active participant in that process."

• During a May 19, 2005, press conference (transcript retrieved from the Nexis database) Grassley stated: "What we're seeing now is unprecedented. Judicial nominees with clear majority support have never been denied a vote by a partisan filibuster until two years ago, and now we've got 10 qualified judges with majority support being held up. The Democrats are denying the Senate its constitutional responsibility of advice/consent by systematically denying appellate court nominees an up-or-down vote. And we can't find anywheres [sic] in the Constitution that says a supermajority is needed for confirmation."

• During a November 18, 2004, press conference (transcript retrieved from the Nexis database) in which Sen. Arlen Specter (R-PA) was named as the new chairman of the Judiciary Committee, Cornyn stated: "We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations. And so a rule change my [sic] ultimately not be necessary. If it is, as Senator Specter has observed, there is precedent for it. And indeed, if necessary, I trust we will move to the so-called -- what I call the constitutional option, which is the ruling from the chair, upheld by the majority of the Senate."

• During a May 23, 2004, floor statement, Sessions stated: "The vote, historically, since the founding of this Republic, is a majority vote. Lets [sic] look at that. The Constitution says that the Congress shall advise and consent on treaties, provided two-thirds agree, and shall advise and consent on judges and other nominees. Since the founding of the Republic, we have understood that there was a two-thirds super majority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done. But there was a conscious decision on behalf of the leadership, unfortunately, of the Democratic Party in the last Congress to systematically filibuster some of the best nominees ever submitted to the Senate. It has been very painful."

• On May 22, 2005, the Tulsa World reported (retrieved from the Nexis database) that Inhofe "want[ed] to limit the current battle over the filibuster to judicial nominees and retain the practice on executive branch nominees and legislation. 'I believe in the filibuster,' Inhofe said. 'I don't think it should be used where it is contrary to the Constitution.' On Cabinet posts and other executive branch positions filled by presidential appointment, Inhofe said, the filibuster is appropriate even though they, unlike judges, do not receive lifetime appointments. 'The Constitution refers specifically to judges as opposed to military and executive branch nominations,' he said."

• The 2005 Tulsa World article also reported that "Coburn disagrees with Inhofe, saying no presidential nomination should ever be filibustered. 'There is a defined charge to the president and the Senate on advice and consent,' he said."

• On November 14, 2003, The Wichita Eagle reported (retrieved from the Nexis database) that Roberts stated that " '[t]he use of the filibuster essentially gives the minority veto power,' which the Constitution didn't intend."

From the March 2 edition of the Politico:

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would "change the tone in Washington" if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate's constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

From the March 2 edition of Roll Call:

Senate Republicans called on President Barack Obama Monday to renominate a handful of former President George W. Bush's judicial nominations and to continue the long-standing practice of consulting with home-state Senators before tapping candidates for district and circuit court positions.

In a letter signed by the entire Conference, the Republicans said that despite the often bruising nature of judicial nominations, they want to work with the Obama administration.

"Unfortunately, the judicial appointments process has become needlessly acrimonious. We would very much like to improve this process, and we know you would as well," the Republican Senators wrote.

Noting that Bush renominated a number of former President Bill Clinton's judicial nominees, Republicans reiterated a request that Judiciary ranking member Arlen Specter (R-Pa.) made earlier this year that Obama tap some of Bush's court hopefuls who did not see votes in the Senate. To do so "would help change the tone in Washington if your Administration would take the same bipartisan step," the Republicans said, highlighting Peter Keisler, Glen Conrad and Paul Diamond as potential candidates for renomination.

The GOP Conference also called on Obama to continue the practice of consulting with Senators before nominating individuals to district and circuit court positions. They argued that in at least one recent published report, Judiciary Chairman Patrick Leahy (D-Vt.) indicated he may no longer make these consultations a requirement for moving a nominee.

Republicans warned that if Obama does not consult with Members before forwarding his court picks, the Conference will look to block them.

"We hope your Administration will consult with us as it considers possible nominations to the federal courts from our states. Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the lawmakers wrote.