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By AndrewHyman Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

Judicial nominees David McKeague, Richard Griffin, and Henry Saad were filibustered in the last congress, and President Bush recently renominated them. They were filibustered primarily at the behest of Senator Carl Levin of Michigan, but not because of their qualifications to sit on the Sixth Circuit Court of Appeals, or even because of their personal political opinions. Levin decided to filibuster McKeague, Griffin, and Saad as payback, pure and simple.

You see, back in 1996, Senator Levin recommended to President Clinton that he nominate a person named Helene White for the Sixth Circuit, and Clinton did so on January 7, 1997. Then for the next four years, the Republican majority in the Senate denied Ms. White a hearing in the Judiciary Committee. Denying a hearing was not very nice, but was perfectly legal. Her nomination eventually expired in January of 2001. During that entire four years, the Republicans were in the majority in the Senate, and so they had a right to do what they did. But now Senator Levin and the Democrats claim that they too have power to reject nominees, even though the Democrats are in the minority instead of in the majority.

Senator Levin was upset with the treatment of Ms. White, and he is retaliating in a very big way. The nominations of McKeague (nominated 11/8/01), Griffin (nominated 6/26/02), and Saad (nominated 11/8/01) have now been pending for a total of more than nine years. One wonders when Senator Levin will be satisfied.

It's true that, if Ms. White had gotten a hearing in the Judiciary Committee, then the full Senate might have approved her nomination, even though Republicans controlled the Senate. However, during the entire four years that Ms. White was waiting for a hearing, Senator Levin did not lift a finger to get the full Senate to bypass the Judiciary Committee, by filing what's called a "discharge petition." Instead of pursuing that remedy, he has chosen to retaliate against three nominees and a president who had nothing to do with the nomination of Helene White. That's fundamentally unfair, even aside from the extraordinary nature of the retaliation that Senator Levin has chosen.

NOTE: Liberal scholar Mark Tushnet has written that, "there's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can�t be overridden in that way."

NOTE #2: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.