What a difference four years makes. In 2005, Bill Frist damned near killed the filibuster for confirmation votes after Democrats began blocking all of George Bush’s appointments to appellate courts. In 2009, Republicans may haul out the filibuster for two Barack Obama appointments, one to the courts and the other to a key post at the Department of Justice:
No longer able simply to defend choices made by a fellow Republican, as they did under President George W. Bush, Republicans on the Judiciary Committee have turned into vocal critics of many of President Obama’s legal nominees. They complain that several are committed liberal ideologues, much in the way Democrats complained that Mr. Bush’s choices were committed conservative ideologues.
But so far, facing a solid Democratic majority in the Senate, they have been able to do little beyond briefly delaying confirmation. Now they are weighing whether to use the filibuster — a threat of extended debate, the tool many Republican senators regularly denounced when it was used by Democrats to block some Republican nominees. These are certainly different times.
The current Republican focus is on a pair of nominees: Mr. Obama’s first selection for a federal appeals court seat, David F. Hamilton, and his choice to head the Office of Legal Counsel at the Justice Department, Dawn Johnsen. (By coincidence, the two are in-laws.)
That must be one hell of a coincidence! I got most of my in-laws by marriage.
Republicans might to better to base their filibuster of Hamilton on competence. The appellate court to which Obama has appointed Hamilton has had to spend a lot of their time reversing his district court rulings. Ed Whelan originally noted this, and gave an example where the Seventh Circuit not only overrode Hamilton but publicly scolded him for exceeding his judicial authority:
For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.
With Johnsen, the objections are purely ideological. Rather than appoint a moderate, Obama has clearly chosen a committed Leftist to the Office of Legal Counsel, the body that advises all executive-branch agencies on legalities of policy and process. Senate Republicans have mostly objected to the partisan tenor of her objection to Bush-era OLC opinions, but as Neil Lewis points out, most of those opinions got withdrawn towards the end of the Bush administration anyway. But Kathryn Jean Lopez rightly points out that her positions and former arguments on abortion — equating it to emancipation — make Johnsen a radical regardless of the eventual resolution of the Bush-era OLC memos.
However, I return to the argument that elections have consequences. Unless Republicans can make an argument that either the two are incompetent, corrupt, or obviously disqualified, presidents have the ability to appoint the people they feel best represent their policies into these positions. For that reason, the Democrats were wrong to filibuster people like Janice Rogers Brown and Miguel Estrada; filibustering Obama appointees in the same manner won’t make Republicans less wrong for doing so. They have a case for incompetence with Hamilton, although probably not strong enough to carry the day, but no case for Johnsen.
In 2012, Republicans can point to the radicals Obama appointed to positions at OLC and show voters that he was lying about being a moderate. That’s where the effort needs to go. Filibusters on appointments for ideological disagreements are every bit as illegitimate in 2009 as they were in 2005.