Back in March, President Obama nominated David Hamilton to a seat on the 7th Circuit Court of Appeals and immediately the Right set about trying to kill his nomination. They failed and Hamilton was voted out of the Senate Judiciary Committee in June and has since been waiting for a confirmation vote on the Senate floor.
And if Sen. Jeff Sessions gets his way, Hamilton won’t ever get one, as Sessions is trying to round up support for a filibuster of his nomination by sending around a letter [PDF] to his colleagues laying out his opposition to the nomination which concludes with this telling choice of language:
This is not the type of service that should be rewarded with a promotion. Indeed, this is one of those extraordinary circumstances where the President should be informed that his nominee is not qualified. [emphasis added]’
Back in 2005 when the Gang of 14 sought to prevent Republicans in the Senate from deploying the “nuclear option” by doing away with the use of the filibuster on nominations altogether, seven members of each party agreed that they would only support future filibusters under, you guessed it, “extraordinary circumstances“:
Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should be filibustered only under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
Hamilton was literally the very first judicial nomination made by President Obama and he has the support of his home state senator, Richard Lugar … but Sessions seeks to prevent an up-or-down vote on his nomination, which is quite a change from what he was saying back when President Bush was still in office:
I have stated over and over again on this floor that I would refuse to put an anonymous hold on a judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don’t like somebody the President nominates, vote him or her up or down. But don’t hold them in this anonymous unconscionable limbo…
UPDATE: The above quote attributed to Sen. Sessions was actually Sessions quoting Sen. Leahy, though the context of the entire quote still makes clear that Sen. Sessions opposed the use of the filibuster against judicial nominations:
But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of the very sincere people who have put themselves forward to be judges and then they hang out here in limbo. Senator Leahy, now leading the filibuster, was on the floor talking about that. Back when the Clinton administration was submitting judges, he said:
I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote. I have stated over and over again on this floor that I would refuse to put an anonymous hold on a judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don’t like somebody the President nominates, vote him or her up or down. But don’t hold them in this anonymous unconscionable limbo. …..
Well, I see Chairman Hatch is here. I know the time is a bit drawn. Chairman Hatch and the Republican leadership have been consistent on this issue, even when it was not to their political benefit to do so. We have opposed the idea of filibusters and have not supported it. The Democrats oppose them when it is convenient and support them when it is convenient. I think their position is untenable as a matter of principle and as a matter of public policy, and our country will not be better off for filibustering judges.
As do other previous quotes from Sen. Sessions:
Of the many reasons why we shouldn’t have a filibuster, an important one is the Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote, and simply “shall advise and consent” on nominations.
Historically, we have understood that provision to mean–and I think there is no doubt the Founders understood that to mean–that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote. That is why we have never had a filibuster. People on both sides of the aisle have understood it to be wrong. They have understood it to be in violation of the Constitution.
I think the American people are getting engaged, and they are telling us “we are tired of obstructionism,” “we are tired of delays,” and “we believe these nominees deserve an up-and-down vote.” I could not agree more.