Dispatches from the Creation Wars

The Senate finally confirmed Obama’s first judicial nominee, Judge David Hamilton, for a spot on the 7th Circuit Court of Appeals, after months of delay from Republicans – the same Republicans who went ballistic when the same thing was done to Republican judicial nominees over the last 8 years. And as Dana Milbank documents, it took some serious situational ethics to justify it.

For much of this decade, Sen. Jeff Sessions of Alabama, now the top Republican on the Judiciary Committee, led the fight against Democratic filibusters of George W. Bush’s judicial nominees. He decried Democrats’ “unprecedented, obstructive tactics.” To have Bush nominees “opposed on a partisan filibuster, it is really wrong,” he added. He demanded they get “an up-and-down vote.” He praised Republican leaders because they “opposed judicial filibusters” and have “been consistent on this issue even when it was not to their political benefit to do so.”

So now a Democratic president is in the White House and he has nominated his first appellate judicial nominee, U.S. District Judge David Hamilton. And what did Sessions do? He went to the floor and led a filibuster.

“I opposed filibusters before,” the Alabaman said with his trademark twang. But in this case, he went on, “I don’t agree with his judicial philosophy. Therefore, I believe this side cannot acquiesce into a philosophy that says that Democratic presidents can get their judges confirmed with 50 votes.”

Oh come on, Senator. You’re not even trying. At least make some pathetic attempt to make your flip flop sound principled. You don’t agree with him? That’s it? If you’re going to be a hypocrite, at least be a nominally clever one and take a stab at inventing some rationale for it that might convince someone.

Let’s see if the others can do better:

There was, for example, Minority Leader Mitch McConnell (Ky.). Back in 2005, he demanded “a simple up-or-down vote” for nominees and urged the Democrats to “move away from advise and obstruct and get back to advise and consent.” He declared that Democrats wanted to “take away the power to nominate from the president and grant it to a minority of 41 senators.”

On Tuesday, McConnell voted to sustain the filibuster.

There was also Sen. Sam Brownback (Kan.), who in 2005 gave his considered opinion that “neither filibusters nor supermajority requirements have any place in the confirmation process.”

On Tuesday, Brownback voted in favor of filibusters.

And there was Sen. Lindsey Graham (S.C.), who warned four years ago that “if the filibuster becomes an institutional response where 40 senators driven by special interest groups declare war on nominees in the future, the consequence will be that the judiciary will be destroyed over time.”

On Tuesday, Graham voted to institutionalize the filibuster.

In all, 3/4 of the Republican Senators voted to sustain a filibuster, something they railed against when Bush was in the White House. And of course, some Democrats are in the same boat:

Democrats had some consistency problems of their own on Tuesday, as they found themselves demanding the “up-or-down vote” that they tried to deny Republicans during the Bush years. But Democrats were not in the same league of hypocrisy, because they weren’t opposing Republicans’ right to filibuster. They merely had enough votes to override this particular filibuster.

But that time is coming. I assure you that at some point in the next year or two, there will be much talk among Senate Democrats about the need to get rid of the judicial filibuster, just as there was when Clinton was in the White House in the 90s. And they’ll talk of the grand principle of majority rule and the sanctity of the up or down vote. This is only the third time the scripts have been exchanged in the last 20 years.