After waging an unprecedented campaign of obstructionism against President Obama’s nominees, Republicans are now crying crocodile tears over a rules change that would end the filibuster on certain judicial nominees.
NBC News points out that Republicans are not blocking judicial nominees over “concerns about ideology or qualifications, but over the president’s ability to appoint ANYONE to these vacancies.” This unprecedented blockade leaves Democrats with few options, as dozens of nominees are left unable to receive a simple confirmation vote.
It’s even harder to be sympathetic to Senate Republicans when you remember that just a few years ago, many of the very same Republicans who are today filibustering President Obama’s nominees willy-nilly were vowing that they would never, ever filibuster judicial nominees. Some even declared that judicial filibusters were unconstitutional and un-American.
But that was before there was a Democrat in the White House.
We take a look back at some of the Senate’s most strident opponents of filibustering judicial nominees, turned master obstructers.
1. Mitch McConnell (KY)
“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).
“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).
2. John Cornyn (TX)
“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).
“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).
3. Lamar Alexander (TN)
“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).
“I would never filibuster any President's judicial nominee. Period” (6/9/05).
4. John McCain (AZ)
“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).
5. Chuck Grassley (IA)
“It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).
“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).
6. Saxby Chambliss (GA)
“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).
7. Lindsey Graham (SC)
“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).
8. Johnny Isakson (GA)
“I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).
9. James Inhofe (OK)
“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).
10. Mike Crapo (ID)
“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).
11 . Richard Shelby (AL)
“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).
12. Orrin Hatch (UT)*
Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).
*Hatch claims he still opposes filibusters of judicial nominees and often votes “present” instead of “no” on cloture votes. But as Drew noted: “Because ending a filibuster requires 60 ‘yes’ votes, voting ‘present’ is identical to voting ‘no.’ Hatch’s decision to vote ‘present’ is an affirmative decision to continue the filibuster.”
Yesterday, the Senate Judiciary Committee voted along party lines to approve the nomination of Georgetown Law professor Cornelia “Nina” Pillard to the Court of Appeals for the District of Columbia, which is often considered to be the nation’s second-highest court. The party-line vote wasn’t exactly a surprise – Republicans have decided they don’t want President Obama to fill any of the D.C. Circuit’s three vacancies, so have voted against both nominees who have come before them so far – but the content of at least some GOP senators' objections to Pillard was notable.
Specifically, both Republican senators who chose to speak on their decision to vote against Pillard went out of their way to object to Pillard’s record on women’s equality.
Yes, the Republican “rebranding” effort is going so well that they are now threatening to hold up a judicial nominee because she believes that men and women should be equal in the eyes of the law and has been very successful in arguing that view in the courts.
Pillard has a long record of working with Republicans and Democrats to defend women’s equality: She worked with the Bush administration to successfully defend the Family and Medical Leave Act in the Supreme Court and crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women (which earned her the respect of, among others, the head of the school who was at the time opposed to allowing women in).
She also has worked on women’s equality issues as an academic, including questioning abstinence-only education that presents a double standard to boys and girls…which is what has sent the far right into a fit.
At yesterday's committee vote on Pillard’s nomination, both Sen. Chuck Grassley (the ranking Republican on the committee) and Sen. Orrin Hatch lifted talking points from right-wing activists like the Family Research Council, Phyllis Schlafly and Ed Whelan of the National Review to attack the nominee’s academic writings on reproductive rights and abstinence education and to even, bizarrely, question whether she appreciates the “benefits of marriage.”
And then every single Republican on the committee voted against allowing her nomination to go to the full Senate for a vote.
To put this in context, Republican senators including Grassley and Hatch were quick to defend demand the confirmation of George W. Bush judicial nominees who made rape jokes and belonged to clubs that excluded women and espoused any number of offensive views, claiming that they could hold these personal views and still be fair judges. As PFAW's Drew Courtney wrote in the Huffington Post yesterday:
Too often we're told that judicial nominations fights are too complicated, too subtle to get major national attention. Not this time. The Republican message is crystal clear: rape-joke making, gay-bashing, abuse-defending, discrimination-supporting, law-skirting, ideology-pushing Republican men are welcome to be judges in our federal courts.
Women who expect to be treated as equals are not.
Sen. Orrin Hatch (R-UT) accused President Obama and Attorney General Eric Holder of acting like “despots” over the “outrageous” Justice Department decision to challenge new voter suppression efforts in Texas.
While the Supreme Court recently gutted a key enforcement of the Voting Rights Act, DoJ retains the right to ask a federal court to impose preclearance requirements on a particular state under Section 3 of the law, which the court’s ruling did not alter.
“He’s trying to reinstitute the Voting Rights Act in Texas; if I was a Texan I would be so doggone livid and mad about that I don’t think I’d ever get over it,” Hatch told NewsMax. “It just shows how this administration ignores the law; they act like they are tinpot despots.”
After arguing that the administration’s actions to protect voting rights are part of a plan to create permanent Democratic control, he claimed that Democratic-leaning states treat people of color the “like dirt”: “Some of the worst states are blue states where they treat minorities like dirt, don’t care of them, don’t do what’s right about them and frankly a lot of this liberal stuff comes out of those states.”
On ABC News’ “This Week” yesterday, Republican Sen. Orrin Hatch of Utah claimed that he takes the “principled position” of voting against filibusters of judicial nominees:
And matter of fact, I continue to vote against filibusters with regard to judicial nominations because I think it's a principled position. I actually think the president, whoever the president may be ought to have the full choice of who they put on the bench.
And unless there's just some overwhelming reason why somebody should never be on the bench.
But on many pivotal votes to break GOP filibusters of President Obama’s federal judicial nominees, Sen. Hatch hasn’t voted “against” the filibuster. Instead, he’s made a habit of voting “present” or not voting at all. Because a motion to break a filibuster requires 60 affirmative “yes” votes to succeed, not voting or voting “present” in effect supports the continuation of the filibuster.
Hatch voted “present” on efforts to break Republican filibusters of Obama judicial nominees Caitlin Halligan, Goodwin Liu, Jack McConnell and Robert Bacharach. He did not vote at all in cloture votes on nominee Andrew Hurwitz and in the second cloture vote on Halligan.
These votes allow Hatch to say he didn’t support a filibuster, while in fact voting to do just that. And he certainly didn’t take a “principled position” to vote “against” his Republican colleagues’ obstruction.
People For the American Way’s African American Ministers In Action, an alliance of 1,200 clergy from across the country, slammed immigration reform amendments offered by Senators Marco Rubio and Orrin Hatch yesterday that would deny health care coverage and other basic protections to immigrants and their children for five years after legalization.
African American Ministers in Action members Rev. Dorothy Chaney of Miami, Rev. Reginald Gundy of Jacksonville, Elder Lee Harris of Jacksonville and Minister Jabari Paul of Tallahassee issued a joint statement:
“When it comes to extending the social safety net to our immigrant neighbors, the moral thing to do is also the prudent thing to do. Denying health care coverage and basic protections to vulnerable families is bad for children and it’s bad for society as a whole.
“We need strong comprehensive immigration reform because vulnerable families are falling through the cracks, unable to start fully productive lives and give back to the country they call home. Our social safety net doesn’t only catch those who fall, it provides a springboard for those who need a leg up. The Rubio-Hatch amendments would relegate immigrants to continued second-class status even after they earn a legal place in the country.
“An immigration reform bill that punishes children and creates a second class status for those who have earned a path to citizenship undermines the goals of comprehensive reform.”
Last week, amid the Religious Right freak-out over the Obama administration's rule requiring health insurance plans to cover contraception, the Family Research Council hastily organized a webcast to rally the opposition called "Healthcare Mandate: Violating the Separation of Church and State."
Among the guests was Sen. Orrin Hatch who claimed that the issue was not about contraception but rather about abortion as he asserted that abortion constitutes 95% of what Planned Parenthood does as an organization:
If that sounds familiar, it is probably because Sen. John Kyl made the same claim last year. Kyl's claims was so thoroughly debunked as patently false [in reality, it is about 3%] that his office was reduced to laughably asserting that "his remark was not intended to be a factual statement."
Apparently Hatch missed that entire spectacle, or simply doesn't care, as he freely repeating the falsehood as FRC's Tony Perkins assured him that he was correct.
The Senate is currently debating the nomination of David Ogden to be Obama’s Deputy Attorney General. That, in itself, is telling. Ogden was expected to sail through the confirmation process, but by last week there was talk of a full-on filibuster.
It’s not easy to disrupt the confirmation of a widely respected attorney with previous government experience and bipartisan backing. It takes big lies and a big megaphone. But the Religious Right and its Senate allies managed just fine.
To hear Senator Orrin Hatch talk about it, you’d think that Obama had actually nominated Larry Flynt to be Eric Holder’s deputy: “The pornography industry is excited about Mr. Ogden’s nomination.”
But that’s nothing. Here’s how the executive director of the Traditional Values Coalition summed up Ogden: “He will be a great ally for advocates for death and homosexuality inside the Justice Department.”
Bear in mind, they’re talking about a man who enjoys the backing of the National District Attorneys Association, National Association of Police Officers, Fraternal Order of Police, National Center for Missing and Exploited Children, and many others. He even won the support of Republican Senators Specter, Graham, and Kyl in committee.
Ogden’s right-wing antagonists don’t care about any of that. They’ve latched onto a handful of cases involving abortion and obscenity from his many years as a corporate lawyer and have distorted them beyond all recognition. Ogden, for instance, represented the American Library Association in its fight against overzealous internet filtering and the American Council for the Blind over whether the Library of Congress should make a Braille version of Playboy, as was the practice for other popular periodicals.
These cases had very real First Amendment implications. But never mind that. His old casework is enough for the Traditional Values Coalition to call him a “pro-pornography zealot.” Concerned Women for America has even speculated that his nomination might mean that the “United States will also fund the international production and distribution of pornography.”
These smears reached hundreds of thousands – perhaps millions – of Americans via right-wing cable news, talk radio, and blogs. Senate conservatives took notice, hence the five ‘no’ votes in the committee and the grumbling about a filibuster. In fact, Senator Majority Leader Reid was forced to file cloture on the vote.
Ogden will surely be confirmed when the Senate finally votes on his nomination today (around 2 pm). But the outlandish rhetoric from the far right and the willingness by conservative Senators to play along are sure signs of what’s to come.