Filibustering to Preserve the Constitution

Filibustering to Preserve the Constitution
Hans A. von Spakovsky
Friday, December 04, 2009

President Obama’s nomination of David Hamilton to the Seventh Circuit Court of Appeals was, according to a senior administration official, “a kind of signal” of the types of nominees the president will choose. The “signal” is that the president is following the example he already set with his nomination of similar radicals like Dawn Johnson and Harold Koh to numerous posts in the executive branch. Thus, it was extremely disappointing when ten Republican senators voted with the Democrats to invoke cloture and deny Senator Jeff Sessions’ attempt to block consideration of Hamilton’s nomination. This allowed the nomination to go forward and he was confirmed 59 to 39.

The refusal of these ten Senators to support a filibuster brings to the fore the issue of how to handle the president’s nominations. It illustrates an unfortunate and profound difference in views about how to handle the president’s nomination of leftists like Hamilton.

There is no question that Hamilton, a former fundraiser for ACORN and board member of the ACLU, is a radical. He has plainly said that judges have the right to amend the Constitution by writing “a series of footnotes to the Constitution.” Hamilton believes judges have the ability to make the law and has demonstrated his determination to implement his own views on social issues instead of following the precedents of the Supreme Court. He was chastised by the Seventh Circuit for refusing for seven years to allow Indiana to implement an informed consent abortion law despite the Supreme Court’s approval of such laws. Even the ABA rated him as “not qualified” when he was first proposed for a federal district court judgeship. Yet Obama nominated a judge who thinks that “empathy” or outcome-based justice depending on the race, ethnicity, and gender of the parties before him in the courtroom is “important” in fulfilling a judge’s oath of office.

Many of the ten Republicans who voted to disapprove a filibuster of Hamilton did so because they do not believe the Constitution allows the Senate to engage in such behavior in its “Advice and Consent” role (although Senator Lugar believes Hamilton is “an exceptionally talented jurist” and was the sole Republican to vote for his confirmation). The constitutionality of that view is debatable, but even if it is correct, that rule should certainly not apply to someone who does not believe in the rule of law, the primacy of the Constitution itself, and the limited role of federal judges that is one of the lynchpins of our republic.

It is one thing to confirm the president’s nominees or allow a vote to go forward even if that nominee has a different opinion on some issues as long as the nominee adheres to the tenets of the Constitution, particularly the clear separation of powers between the legislative and judicial branches. But it is a disservice to the country and to the very basis of our democracy for senators to even allow a vote on someone whose view of the law is so extreme and so far out of the mainstream, and who clearly will not fulfill his oath of office to uphold the Constitution. To paraphrase Justice Robert H. Jackson, the Constitution is not a suicide pact and it makes no sense to oppose a filibuster because it is supposedly unconstitutional in order to allow an individual to become a judge who will work to actively destroy the Constitution.

Too many Republicans continue to insist on playing by the Marquess of Queensbury rules. With only rare exceptions, they have allowed nominee after nominee to slide into office with almost no challenges and no fights and a specific unwillingness to use the filibuster as a procedural way of stopping these extremists. Fortunately, a majority of the Republican senators were willing to use the filibuster to try to stop Hamilton, but once again, ten other senators who were not willing to support a filibuster let them down and a dangerous radical was confirmed in a lifetime appointment to the federal bench.

Starting with Robert Bork and continuing throughout the eight years of the past administration, Democrats did everything they could to prevent Republican presidents from getting their nominees confirmed. They engaged in delaying tactics, character assassination, media manipulation, and outright lies and misrepresentations about the personal lives and professional qualifications of nominees. Miguel Estrada was stopped for purely racial reasons – liberals did not want him groomed to become the first Hispanic nominated to the Supreme Court by a Republican. Obama himself admitted that Chief Justice Roberts was completely qualified for the Supreme Court before voting against him.

Republicans continually complained about these tactics, correctly labeling them as wrong and damaging to our political process, and saying that a president is entitled to his nominees if they are qualified even if they have political views that the opposition does not like. Having gone through a vicious and nasty confirmation process myself, I agree that the tactics used by the Democrats and their advocacy groups have been distasteful, wicked, and just plain wrong.

Republicans insist that they will not engage in the same tactics, and will continue to abide by the rules they believe should apply to the nomination process. Their hope that at some point the Democrats will see the error of their ways, however, is fallacious. The problem, of course, is that the only lesson the Democrats learn from this is that there are no repercussions to their bad behavior. They can treat Republican nominees as badly as they want to, and not only will Republicans not do anything about it, they will allow Democratic nominees to get confirmed with almost cursory reviews of their records and a refusal to use the procedural rules of the Senate to stop the nominations. It also means that it only takes 51 votes to approve Democratic nominees, but 60 votes to approve Republican nominees.

Some Republicans refuse to acknowledge that they will never be successful in stopping Democrats from engaging in such tactics unless they also use very tough tactics towards Democratic nominees. The only way Democrats can ever be brought to the negotiating table to call a halt is if their nominees have the same experiences that Republican nominees have had. You cannot fight with Marquess of Queensbury rules when the other side is willing to kick, bite, gouge, and knife you in the back to win.

Some also apparently have no understanding of the other reasons the Democrats engaged in these tactics. Liberals made the nomination process so unpleasant and last so long, that they successfully scared off individuals who would have been good nominees. There are Republicans who said “no” when the White House called because they did not want to subject themselves or their families to the withering attacks engaging in by Democrats with the help of their allies in the press and the liberal advocacy groups that infest Washington.

This treatment of nominees was also clearly intended to make other individuals serving in the Bush Administration, many of whom were ambitious and hopeful that they might be nominated for a higher position in this or another Republican administration, think twice before actually trying to change liberal policies in the government. A Republican political appointee who went along to get along, instead of trying to change liberal policies knew he would have a much better chance of not having a future nomination challenged by the Left. I saw political appointees in the Bush Administration change their behavior to avoid upsetting liberal interest groups and Democratic members of Congress for that very reason.

When Obama’s nominees are not engaged by Republicans, the President is not deterred from nominating extreme and radical individuals like David Hamilton, and political appointees in the Obama executive branch are not deterred from implementing the most liberal and radical public policies. Why? Because the President and Democratic appointees see that there are no consequences personally or politically for doing so.

By engaging in unconditional surrender, and not fighting hard on the President’s disturbing nominees, some Republicans are simply inviting these tactics to continue unabated against future Republican nominees. The White House also does not have to engage in any cost-benefit political analysis when it is considering who to nominate for important executive and judicial branch positions. Even if the nominees are radicals who would profoundly damage our country, the current attitudes and tactics of the opposition would allow them to be nominated and confirmed. This is especially harmful when it comes to the courts – the President is not entitled to confirmation of individuals who believe that the Constitution and our laws can be ignored, bent or twisted to suit their political, social, and racial “identity” views.

Don’t get me wrong – I don’t think Republicans should lie about the records of nominees or use the same vituperative smear tactics used by liberal advocacy groups. But when the President says he wants nominees who make decisions based on personal feelings and empathy, or who believe that they have the ability to create their own law from the bench, then their personal characteristics, bias, partisanship and ideological beliefs are fair game.

It is time for all Republicans to start fighting and defending every inch of ground. Even delaying tactics are worthwhile – they should be filibustering bad nominees even if they know they will eventually lose a cloture vote. That is one of the only ways to make the American people aware of the danger to our democracy posed by the President’s nominees.

Many of the same Republicans who are unwilling to filibuster judicial nominees are willing to filibuster nominees to executive branch departments. Yet bad nominees in places like the Justice Department will only be there for four years or perhaps eight in the worst scenario. On the other hand, federal judges have lifetime tenure and can only be removed by impeachment. Thus, filibustering in the judicial setting is actually even more important (and justified) to prevent extremists like Hamilton who otherwise will spend decades undermining the Constitution and the rule of law.

Hamilton also focuses attention on another problem. Senators spend their time on Supreme Court nominees and to a lesser extent on courts of appeal nominees. Most nominees to the federal district courts slide through with almost no review. Yet it is district court judges that handle the vast majority of federal cases, many of which are not appealed. A bad district court judge can do enormous damage. And once they have been confirmed to the district court, it makes it even more difficult to oppose their confirmation to a higher court – like the Seventh Circuit. Hamilton is so extreme that he should never have been confirmed as a district court judge.

Obama already has more nominees like Hamilton in the nomination pipeline for the district courts – like Louis “Loophole” Butler, who led the Wisconsin Supreme Court as an appointed judge in overturning its own precedents and the state legislature to implement their own public policy choices. He was so extreme that even the liberal voters of Wisconsin voted against him twice when he tried to get elected to the court.

Ulysses S. Grant and Alexander the Great had one thing in common that marked their success as great generals – they engaged in relentless pursuit, in not giving an enemy any chance to recover. And that is what all the Republicans need to start doing – relentlessly pursing the President and his nominees over their extreme political, social, legal (and yes racist) views that are profoundly dangerous to the future of this great nation.