03/18/2010 05:12 am ET Updated May 25, 2011

GOP's Filibuster Use Casts Them Against Federalist Society

As Senate Republicans prepare to filibuster one of President Obama's first judicial nominees, it's important to note how the debate has reversed over the use of such a parliamentary procedure.

A document still found on the site of the Federalist Society, the crown jewel of the conservative legal movement, makes the case that excessive and political deployment of such a procedural hurdle is, at its heart, unconstitutional.

"The Senate, of course, performs a vital check on both powers through the constitutional review signified by 'advice and consent,'" the document reads. "Yet, it has long been understood that the nature of the nomination and appointment powers is executive, as the placement of the Advice and Consent Clause in Article II of the Constitution signifies."

"The current use of the standing rules of the Senate, not to ensure adequate debate but essentially to permit a fractious minority to change the voting rule on judicial nominations in order to block a Senate majority from confirming the President's judicial nominees, is unprecedented and contrary to this understanding," it goes on.

"Judicial filibusters uniquely threaten to weaken the power of the President in an area in which the Constitution gives him primary authority," the document concludes. "Because the Constitution vests 'all legislative powers herein granted' in the Congress, filibusters of legislation do not rise to the same level of constitutional concern as filibusters of judicial nominees because the latter intrude upon an executive function. What is more, the use of filibusters to defeat judicial nominees also threatens the independence of the federal judiciary by politicizing the confirmation process to an even greater extent."

Published on November 12, 2003, the Federalist Society study was authored as a philosophical salvo of sorts against Senate Democrats for holding up several of President Bush's appellate court nominees. Republicans at the time were happy to trumpet its merits. Indeed, years later, as the use of the filibuster persisted, the GOP would threaten to deploy the so-called "nuclear to eliminate the parliamentary tool altogether. From there the "Gang of 14" compromise was birthed.

Now, of course, the balance of powers is reversed. And the ranking Republican on the Senate Judiciary Committee, Jeff Sessions (R-Ala.), has all but declared that he'll use the same procedural maneuver that the Federalist Society continues to denounce, in an effort to prevent Judge David Hamilton from being appointed to the U.S. Court of Appeals for the 7th Circuit.

"The new rule is filibusters are legitimate, but only if there are extraordinary circumstances," said Sessions. "That's where we are."

Sessions seems likely to have the support of the majority of his Republican colleagues. But even some of the most strident conservative operatives aren't fully ready to abandon consistency in the filibuster debate. Manuel Miranda, a conservative legal activist who has worked on confirmation processes and written for the Federalist Society, penned an email to Republican offices this past week, warning them against excessive or arbitrary filibustering,

Obtained by the Huffington Post, the email reads:

Dear Friends,

Respectfully, I disagree with this rally to "vote no on the cloture" for this or any nominee that one would expect a Democratic president to nominate, if the sole purpose is to block or "stop," and not merely and genuinely to prolong a debate. Calling for a Democrat-style obstructive filibuster, that is likely impossible, is just another "throw them red meat" distraction and yet another easy out for a Republican leadership that has historically been to cool-for-school on judicial nominations.

We should ask Republican Senators to dedicate the time and effort needed to illustrate in vivid colors, on and off the Floor, the reasons why they believe this or any other judicial nominee should not have been nominated, and show the proof of why the elections of a president and senators have consequences. This begins with Senator Sessions doing what his two predecessors never did. Neither Hatch nor Specter ever went to the Chairmen's Meeting and demanded more time and effort on judges, which is why other leaders had to lead that effort.

I won't go into the error we Conservatives make in losing the high ground of defending the Constitution against the extra-constitutional use of the filibuster against judicial nominees. There may be institution-based exceptions to a no filibuster stand, such as preventing windfalls from past obstructions, as in the 4th Circuit, or preventing the godparents of obstruction like Cass Sunstein, Lisa Graves, etc., from being confirmed to a court. But this is not that, and moreover a vote against cloture, with no other noticeable Floor effort, does not get the public attention that an honest up-or-down vote and statesmanlike Floor effort would get.

Manuel Miranda

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