Republicans Forget Their Words on Filibusters, Spurring Setback for Judicial Nominations, Writes Former White House Lawyer

May 31, 2011

The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

In the 2004 law review piece, as Painter notes, Cornyn wrote:

Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

He concludes:

To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

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