- 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.

Republicans said they’ve held hearings for 74 percent of Mr. Obama’s judicial nominees, compared with 44 percent of Mr. Bush’s at the same point; have passed 56 percent of Mr. Obama’s nominees out of committee, compared with 28 percent for Mr. Bush at this time; and have given Mr. Obama’s circuit court nominees hearings an average of 53 days after nomination 123 days less fewer than Democrats allowed for Mr. Bush in his first two years.

Conservatives were split in 2005 on whether Republicans should employ the nuclear option and remain split today on whether to use the Democrats’ own filibuster weapon against them.

Mr. Sessions said Judge Hamilton’s nomination meets the threshold of “extraordinary circumstances” set by the Gang of 14, under which a filibuster could be warranted. In particular, he cited a case in which the nominee ruled against the mention of “Jesus Christ” in prayers before the Indiana state legislature but said prayers to “Allah” would pass muster because they were nonsectarian.

Mr. Sessions and other critics of Judge Hamilton also pointed to his blocking of the state’s “informed consent” abortion law.

But Judge Hamilton has the support of at least one Republican senator, moderate Sen. Richard G. Lugar of Indiana, the judge’s home state, who said in a floor speech that he had known the judge and his family for decades.

“I believe our confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will rule on particular issues of public moment or controversy,” Mr. Lugar said.

Twenty-four conservative activists signed a memo saying Judge Hamilton’s record makes him a good candidate for a filibuster, but others such as Manuel Miranda, chairman of the Third Branch Conference and a former top Republican Senate staffer on the judge issue, say Republicans lose the high ground if they embrace filibusters.

Curt Levey, executive director of the Committee for Justice and one of those who signed the letter, drew a distinction between what Democrats did and what Republicans are contemplating.

He said Senate Republicans should launch a “short-term filibuster” designed to prolong debate on Judge Hamilton in contrast to Democrats’ use of the measure during Mr. Bush’s presidency, when several nominees were blocked indefinitely.

“It’s hard to actually stop nominees when you only have 40 Republicans, but that’s not necessarily the goal here,” he said. He said the goal instead is “to make sure that there’s thorough enough scrutiny of the more controversial nominees so that Obama feels there’s a cost to nominating radicals.”