Supreme Court Sanity Calls For FilibustersTo restore its proper role and keep away Obama nominees, GOP senators can try Democrats' tactics.
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.
Gone was any deference for a president's choice. Dismissed was any thought of respecting a nominee's refusal to prejudge cases. Senate Democrats would try to stop the second coming of Oliver Wendell Holmes. Obama outlined the new standard in 2005. The senator from Illinois admitted that Roberts was highly qualified, but voted against him because "it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak." Obama did not oppose Roberts because of a specific lower court decision, or any speech, article, or book, but because he disagreed with his "deepest values," his "core concerns," his "broad perspective," and the "depth and breadth of [his] empathy."
This new confirmation standard allows only the mutely ambitious on the bench, lawyers whose only distinction is a silent voice and an inkless pen. Republicans can put an end to this race to the bottom only by filibustering Democrat judicial nominees in return.
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