Flashback: GOP Senators Claim Filibusters of Judicial Nominees are Unconstitutional

Later today, the Senate will hold a vote to end the filibuster against Goodwin Liu, President Obama’s nominee to the 9th Circuit Court of Appeals. In 2005, when a handful of President Bush’s nominees faced filibusters, at least 12 current U.S. senators said that preventing judicial nominees from getting up-or-down votes isn’t just wrong: it’s unconstitutional.The impending cloture vote on the Liu nomination will be an important test to separate those senators who stand on principle from those who put politics above all else.

Senator Saxby Chambliss (GA): “I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

Senator John Cornyn (TX): Judicial filibusters are “offensive to our nation’s constitutional design…. [S]eparation of powers principles strongly suggest that the Senate may not—and especially not by mere Senate rule—enhance its own power in such a manner without offending the Constitution” (2004).

Senator Mike Crapo (ID): “[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

Senator Jim Demint (SC): “[D]enials of simple votes on judicial nominees” are “unconstitutional” (5/22/05).

Senator Lindsey Graham (SC): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

Senator Orrin Hatch (UT): Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

Senator Kay Bailey Hutchison (TX): “[T]he Constitution envisions a 51-vote majority for judgeships…. [Filibustering judges] amend[s] the Constitution without going through the proper processes…. We have a majority rule that is the tradition of the Senate with judges. It is the constitutional requirement” (4/28/05).

Senator Johnny Isakson (GA): “[T]he Constitution require[s] an up-or-down vote” on judicial nominees. “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).

Senator Jon Kyl (AZ): “The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate’s obligation under the Constitution to act on those nominees” (4/10/08).

Senator Jeff Sessions (AL): “[The Constitution] says the Senate shall advise and consent on treaties by a two-thirds vote, and simply ‘shall advise and consent’ on nominations…. I think there is no doubt the Founders understood that to mean … confirmation of a judicial nomination requires only a simple majority vote” (7/27/03).

Senator 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).

Senator John Thune (SD): Filibustering judicial nominees “is contrary to our Constitution …. It was the Founders’ intention that the Senate dispose of them with a simple majority vote” (4/21/05).

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