The Constitution Doesn’t Change with the Circumstances

by Doug Kendall, President & Founder, Constitutional Accountability Center

Just four years ago, Senate Republicans were loudly condemning the use of filibusters to block judicial nominees, threatening to blow up the Senate over Senate Democrats’ use of the filibuster to block the confirmation of a handful of President George W. Bush’s nominees Democrats believed were unworthy of confirmation. In the context of that debate, many Republicans argued not only that filibusters were a bad idea — something that they would never, ever do — but that they were unconstitutional.

As early as next week, those words will be put to the test, as Republicans will have to decide whether to join an effort led by Senators James Inhofe (R-OK) and Jeff Sessions (R-AL) to filibuster President Obama’s very first judicial nominee, Judge David Hamilton, an Indiana nominee to the court of appeals who has the strong support of Senator Richard Lugar (R-IN), the Senate’s most senior Republican member.

Here are just a few of the many, many things Republican Senators said on the topic of filibusters during the Bush Administration:

Sen. Charles Grassley (R-Iowa):

“What we’re seeing now is unprecedented…. 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 anywhere in the Constitution that says a supermajority is needed for confirmation.” (Press conference, May 19, 2005)

Sen. Christopher “Kit” Bond (R-Missouri):

“It is a perversion of the intent of the Constitution and, if its use in this manner is not abandoned, then we must take steps to wipe it from the books. . . . A 60-vote standard is contrary to the Constitution.” (Floor statement, May 19, 2005, Cong. Rec. S 5453, S5472-S5473)

Sen. Orrin Hatch (R-Utah):
“Under the Constitution, the President has the primary appointment authority. We check that authority, but we may not hijack it. We may not use our role of advice and consent to undermine the President’s authority to appoint judges. That is why, as I have argued on this floor many times, it is wrong to use the filibuster to defeat judicial nominees who have majority support, who would be confirmed if only we could vote up or down. That is why I have never voted against cloture on a judicial nomination.” (Floor Statement, Oct. 24, 2007, Cong. Rec. S13289)

Sen. James Inhofe (R-Oklahoma):

“The Democrats, who cannot muster a majority to oppose [Bush nominee Miguel Estrada], are seeking, in effect, to change the Constitutional majority-vote requirement. By sustaining this filibuster, they are asserting that 60 votes, not 50, will be required to approve Mr. Estrada. If successful, their effort will amount to a de facto amendment to the Constitution. This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution.” [Senate Floor Speech, 3/11/03]

Sen. Mitch McConnell (R-Kentucky):

“My Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation. In effect, they would take away the power to nominate from the President and grant it to a minority of 41 Senators.” (States News Service, May 19, 2005)

Sen. Jeff Sessions (R-Alabama):

“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.” (Floor Statement, May 23, 2005)

And the list goes on and on.

Now, I never saw much merit in the argument that the use of filibusters is unconstitutional. The Constitution permits the Senate to come up with its own rules, and it makes no comment one way or the other regarding whether a minority of Senators should have the ability to procedurally block the President’s judicial nominees using Senate rules. It’s hard to understand why filibusters can be used for legislation (which requires simply a majority vote for Senate approval) but not judicial nominations, particularly since legislation can easily be amended or repealed, but judges are confirmed for life.

But it’s not my views that are important here. What is important is that the Constitution hasn’t changed in the last four years. If Republican Senators thought filibusters of judicial nominees ran contrary to the Constitution in 2005, surely that is still the case now.

Yet since President Obama came to office, Republicans have been making filibuster threats at the drop of a hat, even sending a letter to the President in March — before Obama had nominated a single judicial nominee — threatening to filibuster anyone who didn’t come with bipartisan support. President Obama responded by (wait for it) naming as his first nominee Judge Hamilton, a sitting district court judge who, as noted above, comes with the strong support of Senator Lugar as well as that of the President of the Indiana Federalist Society.

Apparently, that’s not what Senate Republicans meant when they said “bipartisan,” because now they are gearing up to filibuster Hamilton when he comes up for a floor vote.

Politics change with the circumstances, just like Senators. One thing that does not change, however – absent an amendment — is the Constitution. Republicans Senators are fond of saying they just want judges who will follow the Constitution, but if their view of the Constitution is situational, what does this really mean?

Cross-posted at Huffington Post.

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