Do Filibusters of Judicial Nominations Show “Disrespect” to the Courts?

Shortly after Senate Democrats failed to invoke cloture on Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit, I received a press release from the Leadership Conference for Civil and Human Rights denouncing the “use of partisan filibuster” against Liu’s confirmation. LCCHR CEO Wade Henderson called the Republican filibuster “a reckless escalation in the ongoing campaign by the Senate’s Republican minority to delay and deny confirmation votes to scores of well-qualified judicial nominees.” He further charged that the filibuster showed “disrespect” to the federal courts, adding:

Some nominees have been forced to put their lives and careers on hold for up to two years. But the greatest cost has been to justice itself and the people of our nation who depend on the federal courts to enforce their rights and settle their disputes. Courtrooms without judges are simply incapable of dispensing justice.

The release also quoted LCCHR executive director Nancy Zirkin:

“America’s courts are being held hostage to a stubborn minority of senators placing politics above responsible stewardship of our judicial system,” said Nancy Zirkin, executive vice president of The Leadership Conference. “Highly qualified nominees like Professor Liu deserve to have an up-or-down confirmation vote on the Senate floor.

“We commend those senators who put partisan politics aside today to vote to allow a confirmation vote on Professor Liu,” Zirkin said. “And we urge senators of both political parties to follow suit and give advice and consent to the president’s nominees. It’s their responsibility to a functioning justice system and to our Constitution.”

From these statements, it would seem that LCCHR’s position is that blocking up-or-down votes on judicial nominees shows “disrespect” to the courts and holds the judicial system “hostage.” But that is not the LCCHR’s position. To the contrary, the LCCHR has championed the use of the “partisan filibuster” to defeat nominees it opposed. During the Bush Administration, for example, the LCCHR “applauded” and praised the “leadership” of those who filibustered Miguel Estrada and celebrated those Democratic Senators who filibustered Priscilla Owen. Further, in a 2005 letter, the LCCHR declared that a nominee who could not overcome a filibuster was presumptively unqualified for the federal bench.

In addition to protecting the rights of the minority, the Constitution assigns the Senate final responsibility to advise and consent on the President’s judicial nominees. This means that the Senate is required to evaluate every nominee on his or her fitness to serve on the federal judiciary and to reject candidates who do not convince at least three-fifths of the Senators that they are suitable for lifetime appointment.

The same letter suggested that only those nominees who could receive bipartisan support should be confirmed.

LCCR believes that the appointment of judges with bipartisan support is critical, because judges confirmed without support across party and ideological lines would likely reflect an extreme judicial philosophy. Accordingly, the opinions they rendered would not be likely to reflect mainstream jurisprudence on civil rights. As a result, the progress this country has made on civil and human rights could be jeopardized in the future.

[Ironically, this argument does not support the filibuster of Bush's appellate nominees, all of which would had some Democratic support. At the same time, it would suggest that Goodwin Liu was a bad nominee.]

My point is not simply that LCCHR supported the filibuster of some nominees and opposed it for others. Rather the LCCHR — like many players in these debates — have switched their position on the acceptability of the filibuster itself, and the “partisan filibuster” in particular. When used to block nominees they oppose, it is an important tool. When used to block nominees they favor, it “disrespects” the courts and undermines the functioning of the judicial system.

As readers know, I oppose the filibuster of all judicial nominations. I believe all nominees should receive up-or-down votes — even those I might oppose — and that obstruction of judicial nominees does undermine the functioning of the judiciary. But it’s hard to take seriously those who now mouth principled opposition to filibusters, “partisan” or otherwise, when they were happy to champion filibusters in the past.