Litigation

Debating ?Hypocrisy? on Judicial Filibusters

By Peter Hardin

Charges of hypocrisy were flying when Republican senators, some of whom had vigorously opposed judicial filibusters in the past, unsuccessfully filibustered  President Obama’s nomination of Judge David Hamilton to the 7th U.S. Circuit Court of Appeals last month.

Since Gavel Grab printed some of those condemnations (click here), it’s only fair–and in the interest of full debate–to give some blog space to the other side. Ed Whelan delivers in National Review Online’s Bench Memos blog an intriguing commentary on the whole episode, saying that while he disagrees with the filibuster effort, he also finds the charges of hypocrisy to be “meritless.”

Whelan, a former law clerk to Supreme Court Justice Antonin Scalia, frames an argument that the rules of the political ball game were effectively changed when Democrats repeatedly resorted to judicial filibusters to defeat nominees they opposed.

He writes, “To maintain that some principle of consistency compels Republicans to continue to oppose the judicial filibuster after Democrats have repeatedly resorted to it is to ignore the changed circumstances and to require, as [Republican U.S.] Senator [Jeff] Sessions aptly puts it, ‘unilateral disarmament’ on the part of Republicans.”

This won’t end the debate, yet it’s worth a read, especially coming from the keyboard of someone who disagreed with the filibuster of Judge Hamilton’s nomination. Whelan’s first installment discusses his reasons for opposing filibusters of judicial nominees.

Judge Hamilton, Obama’s first pick for the federal courts, ultimately was confirmed on a 59-39 vote. Turn to Gavel Grab to read more about that controversy. Or click on Justice at Stake’s Web page on judicial nominations, to find out how they are increasingly embattled along political lines.

Full post as published by The Gavel on December 02, 2009 (boomark / email).