Will Republicans filibuster Obama nominees?
No longer able simply to defend choices made by a fellow Republican, as they did under President George W. Bush, Republicans on the Judiciary Committee have turned into vocal critics of many of President Obama’s legal nominees. They complain that several are committed liberal ideologues, much in the way Democrats complained that Mr. Bush’s choices were committed conservative ideologues.
But so far, facing a solid Democratic majority in the Senate, they have been able to do little beyond briefly delaying confirmation. Now they are weighing whether to use the filibuster — a threat of extended debate, the tool many Republican senators regularly denounced when it was used by Democrats to block some Republican nominees. These are certainly different times.
The current Republican focus is on a pair of nominees: Mr. Obama’s first selection for a federal appeals court seat, David F. Hamilton, and his choice to head the Office of Legal Counsel at the Justice Department, Dawn Johnsen. (By coincidence, the two are in-laws.)
As readers will rightly recall, both Marcie and I were quite vocal in our opposition to the Democrats using the filibuster on President Bush's judicial nominees. It's an unprecedented measure that they used on as many of his judicial nominees as they could. They were wrong to target judges like Janice Rogers Brown, Miguel Estrada, and Michael Luttig because none of the judges had competency problems. They filibustered them because they disliked their judicial philosophy, which was to abide by the Constitution, and what the Framers' intent was.
On Hamilton the competency issue is where they have a stand. Ed Whelan noted the issue of Hamilton's competency in a post where he pointed out that the very court Hamilton is being considered for publicly admonished him over a ruling he handed down. It's clear that Hamilton is a liberal ideologue that Barry wants on the Seventh Circuit Court. He is hardly the moderate Barry claims he is.
Johnsen, on the other hand, has her own skeletons as Andrew McCarthy points out here which she contends that pregnancy can be equated to involuntary servitude. In that column, Mr. McCarthy points out her radical views:
Her bizarre equation of pregnancy and slavery was not an off-the-cuff remark. It was her considered position in a 1989 brief filed in the Supreme Court. At the time, she was legal director of NARAL (then the National Abortion Rights Action League, since renamed NARAL Pro-Choice America). The case, Webster v. Reproductive Health Services, involved a Missouri law that did not ban abortion but restricted the use of state funds and resources for abortions. It’s an obvious distinction, but one without a difference — at least according to Johnsen. Any restriction that makes abortion less accessible is, in her view, tantamount to “involuntary servitude” because it “requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest [in the life of the unborn].” In effect, a woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.” Such “forced pregnancy,” she contends, violates the Thirteenth Amendment, which prohibits slavery.
The Court rejected this farcical theory, just as it has rejected other instantiations of Johnsen’s extremism. On abortion and other issues dear to the Left, she is nothing short of a zealot. She insisted that, without government-provided abortion counseling, a large number of women would be left without “proper information about contraception.” This, she claimed, would mean they “cannot be said to have a meaningful opportunity to avoid pregnancy.” The usual rejoinder to such reasoning is that nobody is forcing these women to have sex. Johnsen sees it differently, writing that these “losers in the contraceptive lottery no more ‘consent’ to pregnancy than pedestrians ‘consent’ to being struck by drunk drivers.” ...
For Johnsen, no impediment to abortion-on-demand passes muster: She opposes 24-hour waiting periods, parental-consent requirements for minors, and laws against partial-birth abortion. In 2007, when it upheld the partial-birth ban in Gonzales v. Carhart, the Supreme Court clinically described the standard abortion procedure (i.e., the dismemberment and evacuation of the unborn child) to contrast it with the more barbaric partial-birth method. Johnsen’s reaction — voiced while proposing “A Progressive Agenda for Women’s Reproductive Health and Liberty” for the left-leaning American Constitution Society — was to complain that “every first-year law student’s constitutional law casebook” now contains “gruesome descriptions designed to make abortions sound like infanticide.” Moreover, as she declaimed in a 2006 op-ed opposing Samuel Alito’s confirmation, opposition to all restrictions on abortion — not just acceptance of Roe v. Wade — should be a litmus test for judicial nominees. “The notion of legal restrictions as some kind of reasonable ‘compromise’ — perhaps to help make abortion ‘safe, legal, and rare,’” she wrote, “proves nonsensical.”
Do we oppose her nomination to the OLC? Yes, we do, but our opposition is based on her views, and nothing more. She is competent to handle the post (she did so before in the Clinton administration), but there is nothing to prevent her appointment. Remember folks, elections have consequences. When the guy we oppose wins, he still has the same rights the previous president has. Barry is entitled to name whoever he wants to what ever post he chooses. Johnsen, her abortion views aside, shouldn't be filibustered. Hamilton, on the other hand, is clearly incompetent given the amount of decisions he rendered that were overturned, and the public admonishment from the Seventh Circuit Court.
The GOP needs to pick it's battles. Hamilton is worth the fight. Johnsen is not. We dislike using the filibuster on nominees for petty reasons. To oppose Johnsen would show the pettiness of our side while we could successfully mount a valid filibuster on Hamilton. And I'll remind readers that this has nothing to do with the go-along, get-along argument. We detest the GOPers that play that game. But in this case, the president has the right under Article II for his appointments, and we have an obligation to prevent incompetent people from being placed in posts they have no business holding.