The media have been in a flurry in recent weeks over whether Supreme Court Justice John Paul Stevens will retire this summer. Today on Fox News Sunday, Sen. Jon Kyl (R-AZ) already held open the possibility that the person President Obama nominates may face a filibuster:
WALLACE: [A]re you willing to pledge right now that the GOP will not filibuster whoever the president nominates?
KYL: It would — it will all depend on what kind of a person it is. [...]
I want a judge who will read the law and declare it in each case that comes before him or her as it should be — in other words, don’t have somebody coming in with preconceived attitudes — I’m going to be tough on the executive, or, I’m going to be for the little guy, or whatever their preconceived attitudes are. We’ve had too much of that. [...]
I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test. And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.
Wallace then brought up the fact that Kyl previously denounced the judicial filibuster, saying, “It’s never been the case until the last two years that a minority could dictate to the majority what they could do.” Kyl responded by blaming Democrats for the rise of the filibuster:
KYL: I would prefer to go back to the situation where it is not done by either party, but the Democrats won that fight. They filibustered Miguel Estrada. He never got on the court. Seven other circuit nominees. So what we need to do is, I think, apply the rule that the Gang of 14 game up with a couple years ago that you don’t filibuster except in extraordinary circumstances, and I’m willing to live by that general rule.
As Wallace noted, in 2005 — when Republicans were in the majority — Kyl had a very different opinion of the filibuster. On Meet the Press on April 25, 2005, Kyl advocated for the end of filibustering judicial nominees: “It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we’re not changing the rules in the middle of the game. We’re restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster.”
Kyl, however, has been itching to use the judicial filibuster since Obama took office. Just a few days after the nation elected Obama president, Kyl was already threatening to filibuster potential Supreme Court nominees. He was rude to Sonia Sotomayor during her Senate hearings and tried to put up all sorts of procedural hurdles to block her confirmation.