- The Washington Times - Tuesday, March 17, 2009

When it comes to judicial nominations, Republican senators are finding themselves defending hills they sought to storm just a few years ago.

Republicans sometimes ignored home-state senators’ objections to nominees and threatened to change the rules to end filibusters on nominations when they held the majority and the presidency — but today, those same Republicans argue home-state consultation is sacrosanct and are promising their own filibusters if Democrats don’t respect them.

Republicans say they aren’t making threats, but either way, their unified stand, expressed in a letter earlier this month, appears to be working: Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, said he expects to accommodate Republicans’ home-state prerogatives, up to a point, and Senate Majority Leader Harry Reid appears to have ruled out the “nuclear option” of ending filibusters.

“I can’t imagine Senator Reid would ever resort to the illegitimate tactic called the ‘nuclear option’ that the GOP turned to four years ago,” said Jim Manley, spokesman for Mr. Reid, pointing to a floor speech Mr. Reid gave as Democrats were about to assume control in December 2006. In that speech, he called Republicans’ effort to change the rules “a raw abuse of power, fueled by a misreading of history.”

As Mr. Reid’s words suggest, judicial nominations are the cause of a continual bare-knuckles political fight on Capitol Hill, and senators jealously guard their constitutional prerogative to confirm federal judges.

However, the process has deteriorated under the past two presidents, producing flip-flops on both sides.

In the current go-around, the chief change has come on the part of Republicans and the policy of “blue slips” — the cards senators traditionally return to show support or opposition to a judicial nominee from their home state.

Under the leadership of then-Judiciary Committee Chairman Orrin G. Hatch of Utah, Republicans in 2003 and 2004 announced that tradition was no longer binding. They were trying to move several nominees from Michigan over the objection of both of Michigan’s Democratic senators.

Republicans even dug up a memo from the late Sen. Strom Thurmond of South Carolina, who had written a history of five nominees who either had been given a hearing or had been confirmed despite opposition from home-state senators.

Still, Democrats rallied around the their Michigan senators’ objections and fought Mr. Hatch’s move, ending with filibusters against some of those Michigan nominees.

That’s why when Mr. Leahy told Congressional Quarterly earlier this year that he wasn’t sure how he would handle blue slips, Republicans pounced.

They fired off a letter in early March, signed “All Republican senators,” that laid out Republicans’ expectations and threats. The letter was addressed to President Obama and Mr. Leahy.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the Republicans said in their letter.

Getting all 41 Republicans on board — just enough to sustain a filibuster — was a major accomplishment.

It also required that some senators go back on their previous positions, but Republicans said it’s more important that Democrats, not Republicans, be consistent.

“We’re not asking Leahy to follow the Hatch position; we’re asking Leahy to follow the Leahy rule,” said a senior Republican Senate official involved with judicial nominations. “Senator Hatch isn’t chairman now, and he wasn’t chairman for the last couple Congresses.”

“What we’re just asking the chairman to do is maintain the same position in this administration that he had in the previous administration — and that is, if a favorable blue slip is not returned on a nominee, then that nominee is not processed,” said the official, who spoke on condition of anonymity so as not to disrupt ongoing negotiations over confirmation of nominees.

Senate Minority Leader Mitch McConnell of Kentucky supported the move to end judicial filibusters under Republican control, but last week he defended Republicans’ right to use a filibuster now.

“I don’t think that was a threat; it was just an indication that we intended the policy to continue,” he said in explaining the Republicans’ letter.

Mr. Hatch, the man who decided to disregard the blue-slip tradition in 2003, said there’s a distinction between his own actions as chairman and what Republicans are threatening now.

“The ‘blue slip’ policy operates at the committee stage, while the recent letter focuses on the next stage, when a nominee reaches the Senate floor,” he said.

He also offered Mr. Obama some advice going forward.

“When I was chairman, I always emphasized the need for the White House to consult with home-state senators,” he said. “President Obama can help maintain a smooth confirmation process by doing what I always called for, and what Democrats always demanded of Republican presidents, working with home-state senators to find acceptable qualified nominees.”

Mr. Leahy told The Washington Times the letter took him by surprise — “I read it in the paper. They didn’t send it to me” — but said Democrats already had planned to rely on home-state consultation. He said he even has spoken to Mr. Obama about it.

“I have told them I have no intention of doing what they did when they pocket-filibustered 60,” Mr. Leahy said, pointing to Republicans’ blockade of President Clinton’s nominees late in his second term.

Mr. Leahy also said he doesn’t see a need to exercise the so-called nuclear option, which would establish a new Senate precedent that filibusters are not allowed for judicial nominations.

In their letter, Republicans even tossed out some appellate nominees Mr. Obama might look to resubmit. They pointed to Peter D. Keisler, a Bush Justice Department official whom liberal interest groups opposed and whose nomination was held up, and two federal district judges, Glen E. Conrad and Paul S. Diamond, who Republicans said “enjoyed bipartisan support.”

The White House declined to comment on judges at this point, though Mr. Obama’s rhetoric on the issue may be constrained by his actions as a senator. He voted against both of Mr. Bush’s Supreme Court nominees and joined in filibusters against a series of Mr. Bush’s appellate court nominees, lending an air of legitimacy to any Republican efforts to filibuster.

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