Understanding the GOP’s Pre-Emptive Filibuster Threat

Yesterday, the New York Times ran an editorial criticizing Senate Republicans for preemptively and hypocritically threatening to filibuster President Obama’s judicial nominees if they are not consulted and approve of any nominees before they are made.

Predictably, Ed Whelan doesn’t like it:

1.  The editorial contends that Republican senators are now “threatening … filibusters if Mr. Obama’s nominees are not to their liking”, and it alleges that this threat is “at odds with their previous views on the subject.”  But the Republican senators’ letter does not threaten filibusters for the purpose of defeating judicial nominees “not to their liking”.  It threatens a filibuster if Democrats trample the traditional blue-slip privilege.  

2.  As to the blue-slip privilege:  The editorial states that Judiciary Committee chairman Patrick Leahy “must decide whether to follow the Senate’s ‘blue slip’ tradition, which holds that judicial nominees should not move forward without their home-state senators’ support.”  Two sentences later, it asserts that “Republicans abandoned them [blue slips] when they controlled the Senate under Mr. Bush.”  That assertion is a fantasy, an ignorant statement, or an outright lie.  All that Senate Republicans are seeking is maintenance of the same blue-slip practice that they afforded Democrats under President Bush.  There is nothing that Leahy “must decide”—unless he wants to trample the blue-slip privilege.

Let’s take these points one at a time.

Point 1: Whelan says that the Republicans are not threatening to filibuster only if “the traditional blue-slip privilege” is not observed.  Of course, if this letter were really about “blue-slip privileges” it should have been sent to Senate Judiciary Chairman Patrick Leahy who is in charge of determining the committee’s blue-slip policy, rather than President Obama.  The letter instead was sent to Obama and it makes no mention of blue-slip policy at all.  What it does make is a demand to be consulted on nominations and a threat to prevent them from moving forward if they are not:

We hope your Administration will consult with us as it considers possible nominations to the federal courts from our states.  Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.

Let’s be clear, this has less to do with blue-slip policy than it does with the Republicans’ very clear threat to filibuster any judicial nominee of whom they do not approve which, as we pointed out before, is a position that is diametrically opposed to the one they held when George W. Bush was in office regarding the Senate’s role in the confirmation process.

In addition, as this Congressional Research Service report [PDF] from last year explains, Senators from the opposition party have traditionally had little influence over the judicial selection process itself and have exercised their power primarily through the use of the blue-slip.  

Which brings us to Point 2: Whelan asserts that the claim that Republicans ignored the blue-slip policy under President Bush is “a fantasy, an ignorant statement, or an outright lie” and that “all that Senate Republicans are seeking is maintenance of the same blue-slip practice that they afforded Democrats under President Bush.”

What practice would that be?  The one Sen. Hatch had of ignoring the blue-slip policy altogether when it served the GOP’s interests, according to the Congressional Research Service?

The Kuhl nomination appears to represent a significant change in the blue slip policies between Chairman Leahy in the 107th Congress and Chairman Hatch in the 108th Congress. During the 107th Congress, Chairman Leahy required both blue slips to be returned, which meant that no action was taken on Kuhl’s nomination. Without the return of California Senator Barbara Boxer’s (D) blue slip, Senator Leahy had declined to advance the Kuhl nomination in the 107th Congress. However, in the 108th Congress, even without Senator Boxer returning her blue slip, Chairman Hatch held a hearing.

Also in the 108th Congress, shortly before the 2003 August recess, Chairman Hatch held a hearing for Henry Saad of Michigan to be U.S. Circuit Court judge for the Sixth Circuit. Chairman Hatch moved forward with the Saad nomination despite the objection of Michigan Senators Carl Levin and Debbie Stabenow. This marked the first reported instance that a nomination with two negative blue slips has had any committee action since 1985 and only the second known case in committee history. Senators Levin and Stabenow had returned negative blue slips on March 19, 2003.

Is that the sort of treatment Senate Republicans are demanding?  If so, I am sure the Democrats will be happy to acquiesce.

There is simply no way to believe that Senate Republicans are demanding that they receive the same treatment they accorded to Democrats when President Bush was in the White House and the GOP controlled the Senate as they know full-well that Democratic input in the process was all-but-non-existent. They would be, in essence, asking to be marginalized, ignored and steam-rolled.

In short, the letter the Senate Republicans sent to President Obama is not about the arcane minutia of the blue-slip policy. It is, rather, a sign that, far from playing the role they demanded of Democrats under President Bush, they want to assert their power to obstruct the nominations of President Obama as much as humanly possible.