Democratic Hypocrisy

March 14, 2012

A palpable air of hypocrisy hangs over the Senate these days. Seeking to distract attention from President Obama’s unconstitutional “recess” appointments — not to mention the failure of his economic policies — Democrats disingenuously accuse Republicans of “obstructing” the president’s judicial nominees.

In an attempt to create the perception of Republican resistance, Sen. Harry Reid (D-Nev), has taken the extraordinary step of scheduling contentious cloture votes for 17 nominees who were otherwise on the normal path to routine confirmation, claiming “delay for delay’s sake.”

Of course, these desperate claims are entirely false: the Senate has already confirmed more of President Obama’s nominees (129) than it did during President George W. Bush’s entire second term (120), and has done so at an almost identical pace (average of 218 and 211 days, respectively, from nomination to confirmation). Indeed, not long ago Reid acknowledged that the Senate has “done a good job on nominations,” and a Judiciary Committee Democrat recently noted that we have been “speeding up the confirmation of judges.”

Claims of Republican obstruction are not only demonstrably false, they are highly hypocritical. The very Democrats now seeking to manufacture confirmation controversy personally devised and carried out a systematic effort to block President Bush’s judicial nominees through an unprecedented use of the Senate filibuster.

It is a matter of historical record that beginning in 2001, Senate Democrats dramatically changed the confirmation process. Throughout the Bush administration, Democrats actively sought to block numerous judicial nominees, forcing more than 30 cloture votes as Republicans tried to end persistent Democratic filibuster efforts.  
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), voted against cloture a record-setting 27 times. Sen. Chuck Schumer (D-N.Y.), cast 26 votes to filibuster Bush nominees and, in 2003, defiantly declared: “Yes, we are blocking judges by filibuster. That is part of the hallowed process around here.”  

Even Sen. Dianne Feinstein (D-Calif.), who now claims to have been “respectful of President Bush’s appointments,” repeatedly joined with Democratic colleagues in attempting to filibuster judicial confirmations, including seven separate votes against cloture for the nomination of Miguel Estrada—one of the nation’s leading appellate lawyers—to the D.C. Circuit.  

Not to be outdone, Reid took virtually every opportunity to block Bush nominees, voting against cloture on 26 separate occasions. In his view there was no amount of time—“not a number in the universe”—that would be adequate for debate on the filibustered nominees.

During his brief time in the Senate, President Obama himself played a key role in the Democratic filibuster campaign, helping lead the effort to block the nomination of Leslie Southwick to the Fifth Circuit. Then-Senator Obama also joined Democrat colleagues in voting to filibuster the judicial nominations of Priscilla Owen, William Pryor, Janice Rogers Brown, and Samuel Alito.

Rather than retaliate by continuing with the obstructionist techniques Senate Democrats invented and implemented, Republicans have taken a more cooperative approach. We have confirmed more than 80 percent of President Obama’s judicial nominees, approving a larger share by unanimous consent than under President Bush.

During President Bush’s first three years, Senate Democrats forced 19 cloture votes on judicial nominees; during President Obama’s first three years the Senate took only 6 such votes. Indeed, contrary what some Democrats now claim, the reality is that 84 percent of all votes to filibuster judicial nominees in American history have been cast by Democrats. For those same Democrats to claim Republican obstruction is the height of hypocrisy.

So, why have Senate Democrats resorted to such blatantly false accusations? The answer is simple. They would prefer to talk about imagined “obstruction” than rising gas prices and their own failed economic policies. They also seek to distract attention away from President Obama’s unconstitutional “recess” appointments.

As a senator, President Obama explicitly rejected the view that “the president, having won the election, should have complete authority to appoint his nominee.” Yet once he ascended to the White House, he did just that.  On January 4, President Obama unilaterally made four appointments without the Senate’s advice and consent at a time when -- according to its own rules -- the Senate was not in recess. Such unconstitutional executive aggrandizement was a brazen and unprecedented attack on legislative branch authority.  

Baseless and hypocritical claims about the current confirmation process cannot obscure an undeniable reality. The president consciously chose to trample on the Constitution. Considering himself above the law, he took for himself a power that our founding document makes clear belongs to the Senate.  

The Framers explicitly designed our constitutional system such that each branch would, in the words of Federalist 51, have “the necessary constitutional means . . . to resist encroachments of the others.”  When faced with far less problematic recess appointments during the Reagan years, Sen. Robert Byrd (D-W. Va.),—a Democrat from a more responsible era—responded by holding up action on 70 executive and judicial nominees and more than 5,000 military promotions.  Byrd recognized that such action was “the only leverage we have to make sure that the executive branch does not continue to use the recess appointment process as a means of circumventing the constitutional role of the Senate.”

Senators of both parties understood then a truth that Democrats now seek to avoid and obscure: the Senate’s constitutional responsibilities matter and must be enforced by the Senate.  It is now time for the Senate to stand up for its rightful authority—as well as for the people’s liberty that such checks and balances were designed to protect—and respond to President Obama’s unconstitutional actions.