- The Washington Times - Tuesday, November 17, 2009

Republicans who decried Democrats’ filibusters of President George W. Bush’s judicial nominees are now debating whether they should use the same tactic against one of President Obama’s nominees, a candidate who they say has an antipathy toward Christianity and pro-life legislation.

With conservative activists cheering them on, some Republicans said Democrats set a new standard by filibustering nine of Mr. Bush’s appeals court nominees and said Republicans will have the chance to turn the tables on one of Mr. Obama’s own appeals court nominees.

“The new rule is filibusters are legitimate, but only if there are extraordinary circumstances,” said Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, who said he’ll vote to block Judge David Hamilton for the Chicago-based U.S. Court of Appeals for the 7th Circuit. “That’s where we are.”

A vote on Judge Hamilton, currently the chief judge of the U.S. District Court for the Southern District of Indiana, is expected Tuesday afternoon.

Judicial nominations are among the most partisan issues in Washington, and Senate Democrats took it to a new level during President Mr. Bush’s tenure. They filibustered a handful of Mr. Bush’s appeals court nominees, including on seven separate votes to block Miguel Estrada from a seat on the D.C. Circuit Court of Appeals in 2003.

The standoff came to a head in 2005 when Republican leaders in the Senate mulled a rules change eliminating the judicial filibuster in response to repeated Democratic uses of the tactic that would have cut the number of votes needed to override a filibuster. But the so-called “nuclear option” was averted after a bipartisan “Gang of 14” negotiated compromise debate rules that allowed filibusters only in the most extreme cases.

With a 60-vote caucus majority now, Democrats said Republicans, with little hope of actually blocking Mr. Obama’s court picks, are just looking to score political points.

“By attacking judicial nominees, Republicans are hoping to galvanize the ultra-conservative wing of the Republican Party for the upcoming election,” said Nan Aron, president of the Alliance for Justice.

Judge Hamilton was Mr. Obama’s first judicial nominee, although others he nominated subsequently have already been confirmed, including Supreme Court Justice Sonia Sotomayor.

According to the Department of Justice, Mr. Obama has to date nominated 27 people to the federal courts, and five have been confirmed: Justice Sotomayor, one appeals court judge and three district court judges.

That pace has sparked a heated debate, with Democrats saying Republicans are obstructing the process and the GOP Republicans saying they’re doing more than Democrats did for Mr. Bush.

“Rather than continued progress, we see Senate Republicans resorting to their bag of procedural treats to delay and obstruct,” Senate Judiciary Chairman Patrick J. Leahy, Vermont Democrat, said in a recent floor speech. “They have ratcheted up the partisanship and seek to impose ideological litmus tests.”

Mr. Leahy argued that Democrats made good progress during the Bush administration and said the nine circuit court vacancies at one point last year were the lowest total in more than a decade.

He also said the five judicial nominees that the Senate has confirmed so far this year represent less than a third of the pace in 2001.

But Republicans said when both circuit and district court nominees are considered, they are doing more than Senate Democrats allowed under Mr. Bush.

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