On what’s good for the gander . . . should Republicans filibuster Obama’s nominees?

Ed Morrissey tries to take the high road at HotAir over threatened Republican filibusters of Obama judicial (and administration) appointees. Normally, I’m all for the high road, but in this case, I’m not sure.  I’m not even sure that what he is advocating is taking the high road so much as it is driving right off of it and over the cliff.

Morrissey closes his post with this:

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.

Morrissey is way too optimistic about 2012. I have no idea why he thinks the slobbering press coverage of Obama during the 2008 campaign will be any different then.  In that environment, how successful does he think Republicans could actually be at getting out the message he suggests?

And why not do both?  Threaten a filibuster and then, after the inevitable failure because of another “gang of 14,” hammer Obama in 2012?  At least if they do both, Republicans could say in 2012 that they tried to stop the radical train Obama had claimed not to be driving. Why not bring that up now instead of in 2012?

But I’m afraid that won’t happen because, bogus accusations from Kossacks and DUmmies notwithstanding, Republicans are always bringing knives to a gunfight.  They are so cowed by press coverage and distortions of their positions that they refuse to take any.

Case in point: the Democrats never had to actually filibuster Bush’s nominees.  All they did was threaten filibuster, and that was enough to keep them from coming to a vote. The Republicans should have actually forced them to drone on and on on the senate floor.  For every American that saw someone taking a principled stand, there probably would have been two that saw the Democrats as obstructionist.  Any objection I might eventually have to a filibuster would be for this reason only — purely tactical. But if they can accomplish the same thing just by threatening one, I’m all for it.

And does he think for one minute that if Republicans refrain from this, it will make any difference in the future? Charles Krauthammer pointed out in 2005 that the Democrats’ use of the filibuster was unprecedented in many ways:

This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson’s nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to allegations involving conflictsof interest and financial impropriety, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.

Even if we concede Fortas, that is one successful filibuster, 37 years ago, in two centuries of American history. In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees but were defeated in that attempt not only by Democrats but also by Republicans voting roughly 3 to 1 for cloture. 

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Senate Majority Leader Bill Frist seems intent on passing a procedural ruling to prevent judicial filibusters. Democrats have won the semantic war by getting this branded “the nuclear option,” a colorful and deliberately inflammatory term (although Republican Trent Lott, ever helpful, appears to have originated the term). The semantic device reminds me of the slogan of the nuclear freeze campaign of the early 1980s: “Because nobody wants a nuclear war.” (Except Ronald Reagan, of course.)

Democrats are calling Frist’s maneuver an assault on the very essence of the Senate, a body distinguished by its insistence on tradition, custom and unwritten rules.

This claim is a comical inversion of the facts. One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. And you surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented.

If Republicans want to take a really principled stand, the could threaten a filibuster now but propose to take it off the table if legislation or senate rules (I’m just not sure what is necessary) abolished the filibuster on judicial nominees (or at least appellate court nominees) forever.  The change would have to be very hard to reverse, so Democrats could not change it later when they see the political ground shifting.  I’d have a hard time swallowing this change, too, but at least it would make it easier to accept a refusal to a filibuster now.

Don’t expect a repeat of the Gang of 14. I doubt there are any Democrats right now who have the obvious need for media love that the Republicans in the Gang of 14 so obviously craved. 

Morrissey is, I think, naive on this subject. Look at history, and you’ll see that Democrats (and Republicans) have definitely sharpened their knives.

Start with the Supreme Court. Reagan had one nominee (Robert Bork) rejected, but his other three nominees to the Supreme Court — O’Connor, Scalia, and Kennedy — received unanimous confirmation, which would never happen today. Under Bush 41, Souter (apparently a sleeper agent for The Left) sailed through with only 9 “no” votes, but Thomas barely made it, 52-48. In President Clinton’s first term, while Republicans were still in the minority, his two Supreme Court nominees — Ruth Bader Ginsburg and Steven Breyer — received only 3 and 9 “no” votes, respectively.  And that was after Ginsburg avoided answering nearly every question on the ground that it would be inappropriate to comment on matters that might come before her as a justice (an innovation Bush’s nominees likewise exploited, to some extent). Then the votes on Alito and Roberts under Bush 43 were 58-42 and 78-22, respectively.

On to the appellate courts, where it looks like both sides have sharpened their knives.  According to a report from the Congressional Research Service (PDF):

Over the course of five successive presidencies, the Senate confirmation percentage for a President’s circuit court nominations has declined.

The great majority of each President’s district and circuit court nominations have been confirmed, except for the circuit court nominations of Presidents William J. Clinton and George W. Bush 

The confirmation percentage for district and circuit court nominations combined was greater than 60% for every congressional session from 1977 through 1990, whereas the district and circuit combined confirmation rate has been less than 60% for nine of the last 13 congressional sessions. !The average number of days elapsing between nomination date and confirmation has been higher for most Congresses in the post-1990 period than for prior Congresses. 

Starting with the 100th Congress (1987-1988), and in five of the eight Congresses since, an average of more than 100 days has elapsed between nomination dates and committee votes on either district or circuit court nominations, or on both. 

For almost every Congress in the post-1990 period, the percentages of district and circuit court nominations left pending at the end of the Congress were higher than corresponding percentages for the pre-1990 Congresses.

The Senate returned substantially more nominations during the 102nd, 106th, and 107th Congresses than during any other Congresses in the 1977-2002 period. 

The average number of days between nomination date and final action increased in Congresses ending in presidential election years. 

The vast majority of judicial nominations submitted during the 1977-2003 period received committee hearings and votes, as well as full Senate votes. However, the share of nominations receiving committee and Senate action declined during the 102nd , 106th, and 107th Congresses, and less than half of the circuit court nominations in the current 108th Congress received Senate votes on whether to confirm by the end of the first session.

Over the course of five successive presidencies, the Senate confirmation percentage for a President’s circuit court nominations has declined.

I’m afraid Morrissey’s argument is one for unilateral disarmament after one’s adversary has developed a new weapon. It would amount to a “nuclear option” that applies only when Republicans are out of power.  That’s not the high road.  That’s driving over it’s edge.

UPDATE and CORRECTION: 

I realized that in one place in the post I said not to expect another “Gang of 14″ yet in another said another “Gang of 14″ was “inevitable.” Hopefully, my meaning was clear from the context, but I should clear it up.  My reference to “inevitable” really meant that some Republicans would cave, not necessarily that they would have to join with Democrats to reach a consensus.  By saying not to expect another, I meant that Democrats have no incentive to join in one and won’t need to.

Now, for my updated thought . .  . I think the effectiveness of filibuster at enhancing 2012 prospects will depend largely on how well targeted the filibusters are. Morrissey advocates against opposing nominees because of ideological disagreements, but that is too absolute a rule. If filibusters are limited to the most radical fringe nominees, Republicans could later point to that exercise of discretion to say, “we weren’t obstructionist, we approved almost everyone; we reserved the filibuster  only for the most radical of the nominees,” then detail why those nominees were radical.  (Of course, if the filibusters fail, the nominees become appointees and we will have plenty of first hand experience with their radicalism.)

From what I’ve read, appellate court nominee David F. Hamilton seems to fit this description to a “T” — making it very smart for Obama to make Hamilton his first judicial nominee. No matter how well-deserved the criticism, Obama can argue that Republicans filibustered his very first judicial nominee and thus were obstructionists right out of the box.

UPDATE #2: Here’s a little Rule 2 for RSM’s generous response to my Rule 1 plea.