Give all judicial nominees a vote

By Richard W. Painter

Special to the Star-Telegram

The Senate on May 19 filibustered President Barack Obama's nomination of Goodwin Liu to the 9th U.S. Circuit Court of Appeals and declined to give him an up or down vote. This is the first filibuster of a judicial nomination by this president, but it is a bad omen for presidents of both political parties and the people they nominate for the federal courts.

When I served as the chief White House ethics lawyer under President George W. Bush, I worked extensively on the selection and confirmation of Chief Justice John Roberts and Justice Samuel Alito, as well as some of the president's nominees for the courts of appeals. While the Supreme Court nominees were not filibustered, some of the appellate court nominees were.

The year before I went to the White House, Sen. Kay Bailey Hutchison's office solicited my views on an unfair ethics allegation that had been made against Texas Supreme Court Justice Priscilla Owen while she was being considered for the 5th U.S. Circuit Court of Appeals. I wrote a letter strongly supporting Owen and pointing out why the allegation was frivolous. Owen eventually was confirmed, four years after she first was nominated.

In the White House, I saw firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impose on nominees and their families.

It is for this reason that Bush insisted the Senate promptly schedule hearings for nominees and then in a timely manner give them an up or down vote. Senators should vote against a nominee they do not like, but they should not use a filibuster to prevent other senators from voting.

This goes for nominees of Republican and Democratic presidents alike -- no exceptions.

The Senate confirmed most of Bush's nominees but continued to block some. The president had strong allies in the Senate, including Sen. John Cornyn of Texas, who gave some of the most articulate speeches against filibusters. He also wrote a well-researched and well-argued law review article explaining why filibusters were wrong.

Cornyn stated:

"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."

Democrats continued to filibuster several outstanding Bush nominees. Consensus was building in the Senate and among voters that filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote. But we were not there yet by the time the Senate switched parties in 2006 and Democrats no longer needed filibusters to block nominees.

Now, we have taken an enormous step backward with the filibuster of Liu's nomination. Virtually all of the Republican senators, including Cornyn, supported the filibuster. Everything they had said against filibusters, so articulately and with so much passion, was forgotten. All for the purpose of blocking a nominee who favored school choice and had the backing of several prominent conservatives, including Baylor University President Ken Starr, Clint Bolick at the Goldwater Institute in Arizona and law professor John Yoo, a Justice Department official under Bush.

Someday, perhaps soon, there will be a Republican president who wants to nominate conservatives to the courts. The Democrats will filibuster. The Republicans will object, but their words will ring hollow. They did not practice what they preached.

Perhaps a new Republican president will follow Bush's example and show leadership on this issue by clearly stating that filibusters are wrong no matter which party is in the White House.

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.

Richard W. Painter is a law professor at the University of Minnesota. From 2005 to 2007, he was the chief White House ethics lawyer under President George W. Bush.

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