After Calling Judicial Filibusters Unconstitutional, Republican Senators Line Up Behind Judicial Filibuster

By Ian Millhiser

The Senate just voted by a 52-43 majority to end the GOP’s filibuster of Professor Goodwin Liu’s nomination to a federal appeal court — which, in the bizarro world that is the U.S. Senate, means that Liu’s nomination will not move forward. The vote was entirely along party lines, except that Sen. Lisa Murkowski (R-AK) voted “yea” and Sen. Ben Nelson (D-NE) voted “nay.”

Just six short years ago, Republicans sang a very different tune when it came to judicial filibusters. Senate Republicans almost unanimously declared filibusters of judicial nominees to be a horrific betrayal of their constitutional role. Many Republicans outright declared judicial filibusters to be unconstitutional. Here is a representative sample of how current GOP senators felt about such filibusters when a Republican was in the White House:

• Lamar Alexander (R-TN): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”

• Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”

• Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent.  That means you got to have a vote if they come out of committee.  And that happened for 200 years.”

• John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.

• Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”

• Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”

• Mitch McConnell (R-KY): “The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.  But my Democratic colleagues want to change the rules.  They want to reinterpret the Constitution to require a supermajority for confirmation.”

Sadly, this willingness to declare something unconstitutional when it suits them and then pretend the Constitution says something else entirely when the political winds change is par for the GOP’s course. Republicans invented a previously unheard of constitutional objection to the Affordable Care Act, they’ve called everything fromSocial Security to Medicare to child labor laws unconstitutional, and they’ve even pretended that the Constitution allows them to strip Americans of their citizenship.

Sen. Nelson’s vote against Liu, however, is utterly inexplicable. When Bush was naming judges, Nelson voted to end cloture on Judge Janice Rogers Brown, a radical tenther who once compared liberalism to “slavery” and Social Security to a “socialist revolution.” It is impossible to imagine what standard Nelson applied that would keep a mainstream voice like Liu off the court, but allow Judge Brown to shape the law.