Daily Kos
Political analysis and other daily rants on the state of the nation

Thursday | February 27, 2003

Novak: GOP loss on Estrada imminent

Once you get past all the partisan whimpering, Novak gives it to us straight: Republicans have all but given up on Estrada.

Now the right is apoplectic because this is the first judicial filibuster in Senate history (so the GOP claims -- I'd love to see independent verification, and I'd love to see if the GOP has previously threatened filibusters). Whatever. The Right has no right to complain. Why? Because they changed the rules when Bush became president. Since I'm too lazy to retype everything out, I'll steal liberally from myself:

When in control of the Senate's judicial committee, Sens. Kennedy and Biden followed the one-blue-slip rule. In effect, senators are allowed to give a thumbs up or down on judicial nominees from their own states. If both senators objected, the nomination was dead.

However, when the GOP took the Senate in 1994, Utah's Orin Hatch took over the judicial committee and the rules suddenly changed. Hatch allowed a single senator to block a judicial nominee from his or her state. Why? Clinton was in office. Jesse Helms used this new rule to block every Clinton nominee from North Carolina.

In 2000, Bush was selected president and, presto, Hatch changed his mind. The "Kennedy-Biden" rule suddenly made more sense. Democrats fought Hatch to a standstill until Jeffords defected and made the whole issue moot. The new Democratic chair of the committee, Patrick Leahy, kept Hatch's rule intact (allowing a single senator to block a nomination).

But after the November elections, Hatch finally got his wish. The rules channged, and a single senator can no longer block a judicial nominee.

So, the Democrats have had to improvise. They will never be able to use the filibuster to the same effect the GOP had with the one-slip rule, but it's something, and I'm proud of our party for sticking with it.

Now, it's obvious that the judicial nomination process is in shambles. It's time both parties rewrote the rules -- get rid of the blue slips altogether, get rid of judicial filibusters.

And, to make it fair, have the rules go into effect for the president that succeeds Bush.

Update: Ahh, RonK finds evidence that the Republicans threatened filibusters of Clinton nominees (link is a PDF):

SUBJECT: Nomination of Richard A. Paez, of California, to be a United States Circuit Judge for the Ninth Circuit.

... Compiled and written by the staff of the Republican Policy Committee-Larry E. Craig, Chairman

... Those opposing the motion to invoke cloture [Allard, Brownback, Bunning, Craig, DeWine, Enzi, Frist, Gramm, Helms, Hutchinson, Inhofe, Murkowski, Shelby, Bob Smith] contended:

Cloture was required on the Berzon and Paez nominations due to holds that we placed on them. Those holds, like all holds, were offered as notice to the Senate that if the nominations were brought to the full Senate for debate they would be subject to a filibuster.

In other words -- these guys get out of committee, they will be filibustered. And as Alan points out:
the Republicans filibustered LBJ's elevation of Abe Fortas to Chief Justice after Earl Warren had announced his retirement, also in the process killing the nomination of Homer Thornberry to be an Associate Justice to fill the seat Fortas would have vacated. Estrada appears to be the first sub-Supreme Court nominee to be filibustered.
Reader BZ sends in this link from the Senate historian with details of that filibuster.


Posted February 27, 2003 06:29 PM | Comments (66)


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