Filibuster Obama Nominees? I’m Shocked!

At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.

My response:

Walter, my good friend, where were you all during the Bush ‘43 years? I recall seeing you often in town, when you weren’t teaching down in Durham.  But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years.  Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections?  And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster – over no fewer than ten nominees.  Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?

To be sure, those were appellate court nominees, but the principle is the same – and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14” finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees.  (I ignore the 1968 Abe Fortas case, which had special circumstances.)

If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand.  I’m not suggesting they do so, however.  The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history.  For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.