In 2005, when President Bush was nominating judges, GOP senators almost universally denounced filibusters of judicial nominees as unconstitutional. Four years later, when a Democratic president moved into the White House, the GOP conveniently forgot about its previous stance on the Constitution — wielding the filibuster to block an unprecedented number of President Obama’s judges.
At least one member of the incoming GOP caucus, however, believes that his party was right in 2005 and is wrong today. In an interview with right-wing radio host Hugh Hewitt, Senator-elect Mike Lee (R-UT) argued against applying the filibuster to judges:
HH: What about as to judicial nominees? I was one of those who urged the Senate to use the Constitutional option in 2005-06, because I really believe that the Constitution commits to the entire Senate the advice and consent process, not to a supermajority. But I know it has its role in legislation. Do you have an opinion yet on whether or not it’s legitimate to filibuster judicial nominees?
ML: Yeah, that’s one of the things I was referring to when I said if the effort is one to clarify instances where the filibuster may properly be invoked, and other instances where it shouldn’t be. I think that’s one area we ought to look at, because I think we can make a strong argument that the filibuster ought not apply with respect to judicial nominees. And so perhaps out of this discussion will come a rule clarifying that point. If so, I’ll be happy.
Of course, it remains to be seen whether Lee will begin to tow his party’s line-of-the-moment once he actually gets into the Senate and is pressured to join the GOP’s crusade against Obama’s judges. Lee’s short political career has been characterized entirely by his willingness to pretend that the law requires whatever outcome conservatives happen to prefer. Among other things, Lee has previously claimed that the Departments of Education and Housing and Urban Development and even Social Security are unconstitutional.
In any event, Lee will have an opportunity to show his true colors on filibuster reform when the new Senate convenes next week. A long line of Supreme Court decisions establish that a newly seated legislature cannot be bound by rules set by previous lawmakers, so the new Senate will have a brief opportunity to reform its rules next week. If Lee is serious about ending future obstruction of judicial nominees, he should join that reform effort.