“The pestilent breath of faction”

    Every once in awhile, it’s fun to monitor the hot air that blows ceaselessly through the Cave of Winds.Nearly one century ago, a witty vice president coined Cave of Winds as a synonym for the U. S. Senate, and I see no good reason to retire the phrase. Hot air is an intrinsic element of senatorial hypocrisy, and members of both parties continue to pump it out – with scant attention paid to the fact that their current spin often collides with the spin they dispensed in the past. It is a bipartisan disease, exacerbated by our pestilent ideological divide.Late last week, for instance, Senate Republicans successfully blocked – via filibuster – the ascent of law professor Goodwin Liu to a seat on the U.S. Court of Appeals in San Francisco. This marked the first time that GOP members have used the obstructive parliamentary tactic to thwart one of Barack Obama’s judicial nominees.The chamber actually decided, 52-43, to end the debate over Liu and stage a final up-or-down majority vote on his nomination. But in the Alice-in-Wonderland world of Senate procedure, those 52 tallies were not enough to move forward. Under the filibuster rules, 60 tallies were required. And since the Senate Republicans were determined to stall on Liu and essentially talk his nomination to death (because they didn’t like his left-leaning judicial philosophy), there could be no 60 tallies. Therefore, the Liu nomination died.What has long died, however, is the once-traditional belief that a president has the right to choose federal judges who share his view of the law; and that the Senate should advise and consent only on professional qualifications. Six years ago, in fact, senators struck a deal on filibusters, promising that in the future they would not routinely block nominees with whom they had ideological disagreements.The ink on that deal has faded. Goodwin Liu ticked off Senate Republicans because, as a law professor, he had once spoken harshly about Bush high court nominee Sam Alito; and because his legal philosophy offended their conservative sensibilities. As a result, every Republican (except for Lisa Murkowski) filibustered his nomination to death. The culprits included:Lamar Alexander – who, back in 2005, had declared: “I would never filibuster any president’s judicial nominee, period. I might vote against them, but I will always see that they came to a (final) vote.”Chuck Grassley – who, in 2005, had said: “It would be a real constitutional crisis if we ‘up’ the confirmation of judges from 51 to 60” votes.Saxby Chambliss – who, in 2005, had said, “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”David Vitter – who, in 2005, had complained that filibustering judicial nominees was “not fair, in the minds of ordinary Americans.”Senate minority leader Mitch McConnell – who, this past January, had said: “When I was in the majority, I opposed filibustering judicial nominees. But I opposed doing so when I was in the minority, and I opposed doing so regardless of who was in the White House.”But, as I indicated earlier, the hypocrisy is bipartisan. Senate majority leader Harry Reid was in high dudgeon late last week about the Liu blockage – but early in the last decade, when Senate Democrats were in the minority, he frequently touted the tactic of blocking President Bush’s judicial nominees.In 2003, Reid once spent nine hours filibustering some of Bush’s picks, in a bid to block up-or-down final votes. Speaking up for minority rights, Reid said, “Don’t think we can be pushed around…We have a say in here.” He was so committed to the filibuster that when Republicans threatened in 2005 to change Senate rules and limit the tactic, he warned that such a move would be “a dark day in the history of the American constitutional form of government.”Lots of Senate Democrats used to talk that way when they were in the minority – including then-Sen. Joe Biden, who in 2005 lauded the Senate as a place where “you can always slow things down and make sure that a minority gets a voice….The chance to filibuster is what makes the difference between this body and the (House).” The filibuster, he also once said, was “designed for the express purpose of guaranteeing individual rights.”The constant rhetorical switcheroos can be downright dizzying. Senate Democrats were big filibuster fans back when they were busy blocking Bush nominees for ideological reasons; in response, Senate Republicans attacked the filibuster tactic (see quotes above) and even suggested that its use to thwart judicial nominees was unconstitutional. Yet back in 2000, in the waning days of the Bill Clinton administration, Senate Republicans did not view it as an evil tool. They used it to thwart several Clinton court nominees, and one Republican, seeking to speak for the party, insisted that filibustering nominees was “our constitutional role.”For the record, it was the Democrats who most conspicuously triggered the ideological war over judicial nominees, when they opposed Reagan high court pick Robert Bork in 1987 – opposing him not on the basis of his professional qualifications, but because of his beliefs. Both sides have been engaged in payback ever since, employing or deploring the filibuster tactic as befitting the exigencies of the moment. Goodwin Liu is merely the latest casualty, and he certainly won’t be the last. So much for Alexander Hamilton’s hope and belief, articulated in 1788, that the “firmness and independence” of the judiciary should be protected from “the pestilent breath of faction.”——-On a weightier note:Happy 70th birthday, Bob!


    Perhaps President Obama penned this error during a spasm of nostalgia. Perhaps he should paraphrase Sinatra and sing, “When I was 46, it was a very good year…”

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