University of California law professor John Yoo -- who is most famous for drafting the so-called "torture memos" -- used his May 2 Philadelphia Inquirer column to urge a filibuster of Elena Kagan, Merrick Garland, or Diane Wood should President Obama nominate one of them to be a Supreme Court justice. What does Yoo think is so radical about these three people, all of whom are widely reported to be on Obama's short list, that a filibuster is in order? Apparently not much. Yoo writes that a filibuster "would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies."
From Yoo's column, headlined "Supreme Court sanity calls for filibusters":
Should senators filibuster Elena Kagan, Merrick Garland, or Diane Wood for the Supreme Court? Yes, if there is any hope of fixing the broken appointment process and restoring limited constitutional government.
The three are the most-often-mentioned nominees for the seat of Justice John Paul Stevens, 90, who last month announced his retirement after 35 years on the high court. A filibuster to prevent a confirmation vote on his replacement would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies.
Over the years, Senate Democrats have destroyed the confirmation process by turning it away from qualifications to a guessing game over how court nominees might vote on hot-button issues such as abortion, the death penalty, and racial quotas. They began the degradation of the advise and consent role with the 1987 rejection of Judge Robert Bork, who would have been one of the most qualified justices in the history of the Supreme Court, and the outrageous effort in 1991 to smear Clarence Thomas (for whom I served as a law clerk). They continued the descent with the filibuster of a slate of excellent picks for the lower courts by George W. Bush, and they reached a new low with their votes against John G. Roberts Jr. and an attempted filibuster against Samuel A. Alito Jr.
The lack of sober analysis of these nominees' records is not surprising. Conservative media figures and Republicans have already made it clear that they will oppose whoever Obama nominates. And recall that the legal analysis Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public.
A Wall Street Journal article falsely claimed, in supposed contrast to Judge Diane Wood, that "[r]ecent Supreme Court nominees" did not have a clear record on abortion. In fact, Samuel Alito had written that he was "particularly proud" of his efforts to overturn Roe v. Wade and had issued a key anti-abortion rights opinion.
Conservatives appear ready to attack anyone President Obama nominates to the Supreme Court as suggested by a New York Times article that quoted conservative activist Richard Viguerie signaling that he will affix the "radical" label to anyone Obama nominates. Furthermore, the specific attacks on potential nominees cited by the Times do not hold up to scrutiny.