GOP Senators Already Planning to Filibuster Justice and Fight Obama Court Picks -- How Typical

A BUZZFLASH NEWS ANALYSIS
by Meg White

In an about-face on procedural policy in Congress, Sen. Jon Kyl (R-Ariz.) recently promised to aggressively filibuster judicial candidates proposed by President-elect Barack Obama.

"I will lead a filibuster if the nominee is the kind of radical leftist who decides cases based on empathy rather than the Constitution or the law. And if that's what [Obama] intends to do, then I'll try to get my colleagues to join in that as well," Kyl said in a speech at a Federalist Society meeting last week.

But that's not what he was saying when his man was in the Oval Office.

Back in 2005, Kyl was anti-filibuster as a result of being frustrated with Democrats, who were in the minority, using filibusters to block President George W. Bush's judicial appointments.

In an interview at the time with PBS's Gwen Ifill, Kyl said, "This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case, until the last two years, that a minority could dictate to the majority what they could do."

That kind of talk is all well and good when you're not in the minority. I'm willing to bet this recent change of ideology was more of a situational thing for Kyl. If his fellow Republican Senator John McCain had been elected to the presidency, he'd probably still be anti-filibuster.

In fact, if it wasn't for deal-making by McCain, along with the 13 other senators that made up the bipartisan Gang of 14, Kyl may not have the option to filibuster today. The Gang got together and agreed the Republicans wouldn't pursue "the nuclear option" if the Democrats agreed to filibuster at most two of Bush's nominees (and no future judges, unless "extraordinary circumstances" existed).

The nuclear option, which Kyl expressed support for, would have called upon Vice President Dick Cheney to effectively eliminate the power of the filibuster. I bet Kyl's glad the nuclear option failed and the filibuster option remains on the table.

Kyl's amusing "heads I win; tails you lose" argument mirrors the standard Republican approach to the judiciary: It's all situational.

Americans tend to tune out judicial appointment stories because conservatives cleverly coat the debate with confusing, yawn-inducing language like "strict constructionist," "judicial restraint," and "originalism."

And the image of an activist judge brings up visions of picket signs and hiked-up black robes revealing Birkenstocks. But when you look at the true meaning of "activist judges," without partisan lenses, it's clear that right-wing judges are guilty of the same. Some might consider Supreme Court Judge Antonin Scalia the most well-known activist judge in the nation.

There are many examples of right-wing activist judges who ignore the Constitution. Let's just look at one of the more recent examples of Supreme Court decisions that did not rely on precedent or a strict adherence to the Constitution, but were instead guided by right-wing activism: the D.C. gun ban case, also known as District of Columbia v. Heller.

The Supreme Court's recent ruling against the D.C. ban on handguns was denounced by all kinds of actual activists as -- well, judicial activism. But it wasn't just the left-wing who was disappointed by the implications of the ruling. Two conservative judges have compared the D.C. gun ban decision to Roe v. Wade.

Judge J. Harvie Wilkinson III wrote this for Virginia Law Review:

"Heller represents a triumph for conservative lawyers. But it also represents a failure -- the Court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

And Judge Richard Posner wrote this for The New Republic:

"I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides."

As for legislating from the bench, it turns out to be a smart move for Republicans, as Martin Garbus, author of Courting Disaster: The Supreme Court and the Unmaking of American Law, explained in a 2003 BuzzFlash interview:

"Republicans and the conservatives, certainly since 1980, recognize the hot button issues for their constituency, for the Evangelical right. Issues such as abortion, affirmative action, school integration, prayer in school -- those wins come through the legal system. So I think what's happened is conservatives have concentrated now, intelligently, on putting right-wing judges on the federal bench."

To that end, Garbus said, Republicans look for judges with right-wing views who are young, in order to extend their influence over future generations. In fact, a recent study from the University of Texas identifies Bush's appointees as the most conservative on issues such as civil rights and liberties.

It's important to remember that this isn't just some wacky lawmaker making noise in front of a group of lawyers. Kyl is the second highest ranking Republican in the Senate. With three Senate seats still up in the air, a filibuster-proof majority will likely elude the Democrats this election cycle. And conventional wisdom says the 2010 election will likely swing back the Republicans' way.

Also, it's important for the American people to realize that this isn't just about the Supreme Court and Roe v. Wade. The entire federal bench is beginning to lean so far right that it's about to tip over. Federal judges deal with the same controversial issues that the Supreme Court does, except that there's a whole lot more of them.

In fact, how they rule can have a significant impact upon what cases even make it to the Supreme Court. They also make precedent in their rulings that is cited in Supreme Court cases. Furthermore, most Supreme Court justices are nominated from circuit court benches.

The GOP blocked nearly six years worth of President Clinton's judicial appointees. Then Democrats rolled over, allowing one of the most conservative judicial landscapes in our country's history to take over. Kyl and others are using fighting words before the game even begins, so Democrats have no excuse for being caught off-guard this time.

A BUZZFLASH NEWS ANALYSIS

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