Jeff Sessions, the top Republican on the Judiciary Committee, today told reporters that he plans on filibustering David Hamilton, President Obama’s nominee to the 7th Circuit Court of Appeals. “I intend not to support going forward on the Hamilton vote,” Sessions said. “Unlike Justice Sotomayor, when asked to discuss the empathy standard he has embraced it.”
Sessions’ announcement marks an about face for the Alabama senator. Sessions, a nominee to the federal bench under Reagan who was blocked by a committee vote, has for his 13 years in the Senate said he would never filibuster a judicial nominee. “One of the many reasons why we shouldn’t have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply ‘advise and consent’ on nominations,” he said in a 2003 floor statement. “Historicaly, 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.”
Sessions, in fact, was a leader pushing then Majority Leader Bill Frist to invoke the nuclear option – a parliamentary tactic to strip the minority of the power of judicial filibusters – in 2005 in an attempt to stop Democratic filibusters of Republican nominees. The showdown was averted when the so-called Gang of 14 – seven moderate Republicans and seven moderate Democrats – joined together to select which nominees were too “extraordinary” to pass the Senate.
Sessions said the 30 Democratic filibusters of President George W. Bush’s nominees helped change his mind. And he’s not the only conservative who believes what shouldn’t be done under Bush should eagerly be done under Obama. Some 24 conservative leaders sent Republican senators a letter last week urging them to filibuster Hamilton, nine of whom had also signed a letter in 2005 asking the Senate to abolish the practice of filibustering judicial nominees. “I believe the times have changed,” Sessions said.
When asked about the 24 Clinton appellate nominees that never made it to the floor to be filibustered because they died in the Republican-controlled Judiciary Committee, Sessions argued that the Dems were much more egregious under Bush. “At the end of his last year in presidency, President Bush had more of his nominations pending and unconfirmed than President Clinton had pending and unconfirmed,” Sessions said. “That’s just Democratic spin,” he scoffed. Still, at least 60 Clinton nominations — to appellate and lower courts — were pocket filibustered by committee Republicans, according to Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat.
Senate Majority Leader Harry Reid filed for cloture on Hamilton last week and a vote is expected as early as tomorrow afternoon. A Democratic leadership aide predicted that Hamilton would pass since he has the support of at least one Republican, Dick Lugar from his home state of Indiana.
So far Obama has succeeded on getting only six of his appointees confirmed to lower courts versus 27 in Clinton’s first year on 28 in Bush’s first year. Republicans object to accusations that they are slow walking many of Obama’s nominees, saying his picks are more controversial and more often meet the “extraordinary” standard. Sessions said will vote to filibuster to Hamilton because the district judge blocked enforcement of an abortion consent law for seven years – a decision that was ultimately rejected by the same appeals court he is now nominated to join. And Sessions cited cases in which Hamilton ruled that prayer to Allah was allowed in Indiana’s House of Representatives but mentions of Jesus were not. These cases, plus Hamilton’s support of the empathy rule and previous statements where he said he believes in footnotes in the constitution, led Sessions to deem Hamilton “extraordinary.” Supporters argue that in the Allah case Hamilton clarified his decision in a post-judgment motion that the ruling applied to all “non-sectarian” references to God and that many conservatives nominees, including Supreme Court Justice Samuel Alito, have also said empathy is an important quality for a judge.
Sessions hinted that Hamilton may not be the only “extraordinary” Obama pick. When pressed if he would find similar fault in the president’s other nominees, Sessions smirked, “You will have to interpret it as you will, I guess.” Meaning Republicans are likely to be objecting to many more of Obama’s nominees in the months to come.