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Filibuster fights play both ways and nominees from both parties know it
C. Boyden Gray has seen the filibuster fight from both sides, serving as chief cheerleader for President George W. Bush's judicial nominations when they were being blocked by Democrats, and then watching Democrats block his own nomination when Mr. Bush tapped him to be an ambassador.
Now, even as Senate Democrats lay the groundwork to curtail those types of filibusters for President Obama's nominees, Mr. Gray is still conflicted on whether the special Senate rule is a force for good, promoting compromise, or a force for bad, enabling needless obstruction.
"I think it's a difficult question. I don't think there's a clear answer," he said. "It depends on where you sit. It's sort of situational ethics. I've been on both sides of it. It's difficult."
Fed up with what they say is unprecedented obstruction, Democrats in the Senate, led by Majority Leader Harry Reid, have vowed to change the rules using a shortcut known as the "nuclear option" because of its potential devastating effects on the comity that underpins the chamber.
Mr. Reid said his hand has been forced by Republicans who broke their word to tread lightly with filibusters.
Hans A. von Spakovsky, whom Mr. Reid himself blocked, says it's pure opportunism.
"Reid held up my nomination for 2 years. He didn't seem to think that was a problem then," Mr. von Spakovsky said. "If you look up the word 'hypocrite' in the dictionary, you'll find a picture of Reid."
Mr. von Spakovsky was nominated to be a member of the Federal Election Commission, but then-Sen. Barack Obama objected and Mr. Reid eventually joined in, forcing Mr. Bush first to name him as a recess appointment and then, when that expired, to withdraw him altogether.
Had the majority-vote rule Mr. Reid seeks been in effect, it's likely Mr. von Spakovsky would have been confirmed by the Republican-led Senate in 2006.
Still, despite having been denied a full term at the FEC, Mr. von Spakovsky generally defends the filibuster.
"If the filibuster is carried out because people have a genuine belief that someone is not qualified or is somehow biased, well then yeah, you should be able to do it. It's when filibusters are carried out for false reasons or simply for political revenge that they're not a good thing," he said. "I'm all in favor of the minority being able to filibuster."
But Mark McKinnon, a political adviser who has worked for Democrats and Republicans and helped co-found No Labels, which fights partisanship in Washington, also got caught up in a nomination battle when Mr. Bush named him to the Broadcasting Board of Governors.
"I couldn't get confirmed for more than three years. And it wasn't because I was Mark McKinnon. It was simply because I was a Republican and a Bush appointee. It's absurd," he said.
He was unequivocal in his disdain for the filibuster on nominations.
"I think presidents should be able to appoint whoever they want. At the very least, appointments should only require a simple majority of the Senate to confirm," he said. "Too many important positions in government, like judgeships, go unfilled for strictly partisan reasons."
For his part, Mr. Gray drew distinctions between the types of filibusters.
He said a president deserves to have his Cabinet officials confirmed without untoward obstruction, but he said that's probably where he'd draw the line, saying that bills, judges, and even lesser executive branch officials are fair game.
"Legislation affects everybody, judges are lifetime [appointments], so there are different considerations that come into play," he said.
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