March 11, 2009

NYT's One Way Standard for Senate Filibuster of Judicial Nominees

The New York Times editorial board has responded to the GOP letter sent to Obama in regards to the judicial nomination process.  I discussed the letter here and Curt provided CFJ's official statement on the matter here

The Times takes the GOP Senators to task for even threatening the use of the filibuster.  Jonathan Adler and Ed Whelan both return the favor in response to what Ed calls a "reckless" editorial.

As Adler notes the Times account is difficult to square with history.  
"The Times’ argument is also difficult to square with history. Senate Democrats did not simply filibuster the “least-competent, most radical” Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as “undemocratic.” If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now? (emphasis added)"
The Times real problem with the GOP letter is that they don't want them to have any input on judges as they make perfectly clear in the editorial.  
The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims. Mr. Obama has to repair the damage, which will require technically able judges who can provide a counterbalance to the ideologues who control many appeals courts.
What is the Times' proof of this sweeping claim?  Well you will just have to trust them.  

The Times states that, "A filibuster can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench."  But it is clear that, from the Times' standpoint, only Republican nominees will ever rise to the level of a "dangerous addition."  The standard they propose for the filibuster reeks of the same partisan hackery they accuse the GOP of because, under the Times standard, only the Democrats will ever be able to rightly invoke the use of the filibuster.  

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