ACSBlog: The Blog of the American Constitution Society

by Ian Millhiser, Editor-in-Chief

In conservative journal, after conservative journal, judicial filibusters have been dismissed with one simple word, "unprecedented". While recent judicial filibusters are not entirely unprecedented, a coalition of conservative Republicans and segregationist Democrats once used the filibuster to block Justice Abe Fortas' appointment as Chief Justice of the United States, it is at least technically accurate when Senator Frist describes the "partisan filibuster of a circuit court judge" as something unknown before this term. Of course the 108th Congress has been a Congress of firsts, so it is helpful to consider a few other firsts Dr. Frist's Senate has performed just this past month.

Just before their convention, Senate Democrats filibustered three more Bush appointees, Judges Saad, McKeague, and Griffin. Democrats have of course justified this action by pointing to the nominees' controversial records on labor rights, civil rights and the environment. Republicans continue to cry bloody murder.

What Republicans have also done, however, is violate two long standing Senate precedents in their efforts to push forward these judges. Traditionally, a federal judicial nominee must have the blessing of both their home state senators prior to receiving a committee hearing. Judges Saad, Griffin and McKeague, however, all native Michiganders, received no such endorsement from either of that state's senators; both Carl Levin and Debbie Stabenow are adamant in their opposition to these three judges. Yet Judiciary Chairman Orrin Hatch paid no heed to such warnings before shuffling the nominees on to a floor vote.

Senator Hatch, of course, was far more concerned with honoring precedent in the Clinton/Gore era. In fact, Saad, Griffin and McKeague stand to fill three open Sixth Circuit judgeships kept open by the sole objection of a Republican senator, Spencer Abraham, during the Clinton presidency. Senator Hatch was also careful to honor the so-called Thurmond rule, forbidding the discussion of controversial judicial nominees in the final six months of a presidential election year. His violation of these rules is no less "unprecedented" than the Democratic filibusters. But regardless, Senate watchers likely ask the wrong question when they look to precedent in Senatorial acts. The Constitution expressly states that "Each House may determine the Rules of its Proceedings," regardless of prior practice, and so far as judicial appointments go, the party which clamors so loud for Originalism might instead heed the words of President George Washington: "Just as the President has a right to nominate without assigning reasons, so has the Senate a right to dissent without giving theirs."