Different River

”You can never step in the same river twice.” –Heraclitus

Most of you reading this probably already know that the Democrats in the Senate have been filibustering many of President Bush’s judicial nominees. That is, even though the Constitution only requires a simple majority of the Senate to confirm judges, the Democratic minority is using a parliamentary maneuver to in effect require a 60% majority to even vote on the nominees. They have used this maneuver on 10 of Bush’s 24 appeals-court nominees so far. (And that’s counting Clinton appointees confirmed after Clinton left office as part of the 24.)

What’s less well known is that the nominees who have been confirmed are generally white male Protestants. Five of the 10 blocked nomiees are, as Steven Calbresi notes,

The eminently qualified conservatives Democrats have quashed include Miguel Estrada, who is Hispanic, Janice Rogers Brown, who is African American, Bill Pryor, a brilliant young Catholic, and two white women, Priscilla Owen and Carolyn Kuhl [also Catholic –DR]. By keeping these five nominees off the federal courts of appeals, Democrats seem to have blocked Bush from considering them for the Supreme Court.

When George W. Bush became president in 2001, the legal left and the Democratic party rallied around the slogan “No more Clarence Thomases.” By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men.

It seems that after 30 years of making political hay by accusing Republicans of not appointing enough women and ethnic minorities, the Democrats are determined to prevent Republicans from appointing women and ethnic minorities, so as to continue to make that accusation. Of course, one could object that Democrats are mostly liberals and these nominees are conservatives. And one could respond that after 30 years of making political hay from the claim that conservatism is a racist and sexist political philosophy, liberals are determined to keep non-white and non-female conservatives out of public view (”in the closet”?) so they can continue to make that claim. And, one could also point out that by allowing white males to chose liberalism or conservatism while simultaneously shunning non-whites and non-females who choose conservatism, they are essentially denying that non-whites and non-females have the right and the ability to think for themselves and choose their own political views.

(Lest you object to the inclusion of Catholics as a group for this purpose, some Democratic Senators, notably Charles Schumer, Patrick Leahy and Dianne Feinstein, have explicitly mentioned their “deeply held religious beliefs” as a reason for opposing them. Note that not only Pryor, Kuhl, and Estrada, as well as Robert Conrad and J. Leon Holmes — that is, five of the ten blocked nominees — are Catholic. )

Of course, the Democrats are not saying these things out loud. They are dressing their defense of the filibuster in the trappings of high principle — no matter how silly it sounds to claim that the principle of democracy would be subverted by the allowing the representatives of the people to actually vote on something.

But one thing you cannot claim is that Democrats have been consistent in their principled defense of the filibuster. In fact, it wasn’t too long ago that some of the most prominent Democratic Senators were making precisely the opposite arguments than they are making now. Consider these examples from Tom Winters, Editor-in-Chief of Human Events:

Sen. Barbara Boxer Then:	Sen. Barbara Boxer Now:
"According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor." (Congressional Record, May 14, 1997)	"So we’re saying we think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super important position. There ought to be a super vote. Don’t you think so?" (Remarks at MoveOn.org rally in Washington, March 16, 2005)
Sen. Ted Kennedy Then:	Sen. Ted Kennedy Now:
"The Constitution is clear that only individuals acceptable to both the President and the Senate should be confirmed. The President and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees–yes or no." (Congressional Record, Jan. 28, 1998)	"But what has not ended is the resolution and the determination of the members of the United States Senate to continue to resist any Neanderthal that is nominated by this President of the United States for any . . . federal court in the United States." (CNN’s "Inside Politics," Nov. 14, 2003)
Sen. Chuck Schumer Then:	Sen. Chuck Schumer Now:
"I also plead with my colleagues to move judges with alacrity–vote them up or down. But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of very sincere people who have put themselves forward to be judges and then they hang out there in limbo." (Congressional Record, March 7, 2000)	"We will invoke every rule in the Senate that we can, without standing in the way of vitally needed programs, to show the people who put it in power that they cannot just by fiat undo 200 years of American history." (Fox News’ "Special Report," April 21, 2005)

ADDENDA (5/9/05, 12:11pm):

More on the flip-flop phenomenon:

• Steven Taylor shows that when Sen. Robert K. (”KKK“) Byrd was majority leader, he used the same procedure in 1980 that he now calls the “nuclear option.”
• And, Pejman debunks the myth that the Republicans once filibustered one of LBJ’s nominees for ideological reasons.