At the beginning of Bush’s second term, Rehnquist and O’Connor were expected to soon retire. Republicans were worried that Democrats would filibuster conservative nominees to the court to death – as they had successfully killed several Reagan nominations. The Republican Senate majority considered preemptively changing senate rules to remove the minority’s power to filibuster judicial nominations.
Democrats were understandably opposed. Barack Obama had this to say:
I rise today to urge my colleagues to think about the implications the nuclear option would have on this chamber and this country. I urge you to think not just about winning every debate, but about protecting free and democratic debate.
Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, this is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.
Barack Obama supported the right to filibuster as an important tool to preserving democratic debate. Later, he seems to have endorsed it also as a simple procedural tactic, when he expressed his lukewarm support for filibustering Alito’s nomination:
Obama expressed sympathy, but, as he told reporters later, the senator expressed pessimism that a filibuster could be sustained.
“It’s really a question whether I vote against Judge Alito once or twice,” he said. Obama conceded that there is some doubt precisely how many Democrats might oppose a filibuster, describing the situation as “in flux.”
“There is an over-reliance on the part of Democrats for procedural maneuvers,” he told ABC’s “This Week.”
In other words, Obama was going to vote against Alito no matter what, and he acknowledged that the filibuster was a simple procedural measure, not an important component of due legislative consideration or the exchange of ideas.
Finally, Obama actually participated in the failed filibuster attempt.
Now it looks like the tables are turning. Two or three Supreme Court vacancies are expected during Obama’ next 4 years in office, and some Republicans are already expressing support for a filibuster.
Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.
Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.
Obama has provided Senate Republicans with a rhetorical defense of the filibuster, he has legitimated it as a purely tactical procedures, and he has even personally participated in a (failed) filibuster attempt. If Democrats do not capture a filibuster-proof majority (the count is still uncertain), the Republican minority may be equipped with a strong defense against Democratic imposition of the nuclear option. Perhaps Obama’s term will see the first failed Democratic nominations to the Supreme Court since Lyndon Johnson.
There is a respectable Constitutional argument in favor of the nuclear option: that the Senate is neglecting a Constitutional duty to give their “advice and consent” on Presidential Supreme Court nominees. I’m not sure how I stand on the issue. Perhaps a subject for another post someday.