Conservatives Say Obama Efforts on Nominees Fall Short

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Wednesday, November 18, 2009 at 4:26 pm
President George W. Bush with judicial nominees Priscilla Owen and Carolyn Kuhl in 2003 (whitehouse.gov archives)

President George W. Bush with judicial nominees Priscilla Owen, Janice Rogers Brown and Carolyn Kuhl in 2003 (whitehouse.gov archives)

On Tuesday, a few hours before the Senate would break an eight-month filibuster on the nomination of Judge David Hamilton to the Seventh Circuit Court of Appeals, Sen. Jim DeMint (R-S.C.) reflected on how his party had decided to delay that vote.

“Before [President George W.] Bush left office,” DeMint told TWI, “I went to a reception at the White House for all the nominees, judicial and otherwise, who had not had votes. Many had not even had hearings. I met members of their families, whose lives had been on hold for years. Republicans had made the argument, for years, that we shouldn’t filibuster judicial nominees.” DeMint smiled. “We lost that argument.”

[GOP1]DeMint’s bitter recollection of the judicial wars of the Bush years went some way toward demonstrating just how Hamilton, who came out of the gate with an endorsement from Sen. Richard Lugar (R-Ind.), remained in limbo so long. Nominated on March 17, Hamilton was seen by Democrats as an uncontroversial pick, the sort of nominee whose easy confirmation could spur more quick votes. But Republicans focused on his brief 1979 work for ACORN and a 2005 decision where he ruled against Christian prayer in Indiana’s state legislature as proof he was out of the mainstream.

“The president has shown us, with his nominees and his czars, [that he's] not looking for mainstream America with these nominees,” said DeMint.

When Hamilton’s nomination began to flag, it called into question the strategy of trying to navigate the Senate with low-key nominees. Holds and filibusters have put 38 Obama nominees–some for the bench, most for administration jobs–in limbo. It’s in that context that the White House and Senate Democrats are reported to be looking at a strategy shift–coming up with a massive list of judicial nominees to “flood the pipeline” and complicate Republican filibusters.

It’s a strategy that conservative activists understand very well. In conversations with TWI, some of the key conservatives who helped get Bush’s nominees through the Senate expressed surprise at how often President Obama’s nominees–judicial and otherwise–have been dragged down by Senate holds and filibusters.

“When you have a popular president and 60 seats in the Senate, you should be able to do whatever you want,” said one Bush administration veteran who worked on pushing through judicial nominations, speaking anonymously so as not to offend friends still in Washington. “Insofar as they can’t get what they want, it’s entirely up to them. Why the hell can’t Dawn Johnsen [the nominee to head the Office of Legal Counsel in the United States Department of Justice] get a vote? They’ve decided not to use the political capital to get her confirmed.”

Rachel Brand, a former associate counsel in the Bush White House, said that the Republican administration had more success in filling the bench and getting nominees confirmed because it proposed so many nominees, and because much of their attention was put to the effort. “If they had been pulling out all the stops and working as hard as possible to get as many nominations as fast possible,” said Brand, “they might have done the same as us.”

Many of the conservative activists who are working to bolster–and provide cover for–Republican filibusters of Obama nominees played the opposite role in the Bush years. Curt Levey, who left the Department of Justice in to campaign for the confirmation of Supreme Court nominees John Roberts and Samuel Alito, currently leads the Committee for Justice. There, he’s produced sharp-edged critiques of Obama nominees, some of them finding their way into the arguments Republicans made for filibusters. “On the surface,” wrote Levey in a Tuesday memo to conservatives about David Hamilton, “Judge Hamilton’s ruling has nothing to do with Nidal Hasan’s violent rampage. But neither could have taken place without a religious double standard borne of political correctness.”

If Democrats are having problems responding to this, Levey told TWI, a major reason is Obama’s unwillingness to make public pushes for his own nominees. “Whether it’s the Afghanistan decision or health care, he likes to remain above the fray,” said Levey. “When it’s really a problem for the White House, they’re driving the strategy–they’re trying to communicate it to senators and outside groups. Obama’s not doing either of those things.”

A look at Bush’s approach to stalled nominations reveals a stark difference with Obama’s approach. Starting in 2001 and ending in 2003, Democrats–who controlled first 51, then 49 Senate seats–filibustered Miguel Estrada, a nominee for the United States Court of Appeals for the District of Columbia Circuit. On February 11, the president opened a press conference on welfare by talking about the Estrada nomination; he followed up that day with a statement asking for an “up-or-down vote.” February 22, 2003, he devoted the weekly presidential radio address to the Estrada nomination, and accused Democrats of “partisan politics” that were “unfaithful to the Senate’s own obligations.” On February 26, talk about Estrada dominated Bush’s speech to the Latino Coalition. On March 6, Bush released a statement calling the Democratic filibuster of Estrada “a disgrace.” On March 11 Bush sent a letter, the content of which was released to the public, asking then-Senate leaders Sen. Bill Frist (R-Tenn.) and Sen. Tom Daschle (R-S.D.) to break the filibuster. On March 13, Bush spoke about the filibuster yet again. All of this occurred while the White House was preparing–and making the public case–for the invasion of Iraq on March 20.

Those statements were backed up by a drumbeat of criticism from conservative groups that did not end even after Estrada withdrew his nomination in late 2003. While Estrada never made it to the bench, conservatives spot a difference between Bush’s doggedness and Obama’s benign neglect. Bush pushed hard for the judicial nominees that ended up getting confirmed in the 2005 “Gang of 14″ deal. By way of comparison, there is no record of Obama speaking about the stalled Hamilton nomination after March 17, when the nomination was announced at the White House. One veteran of Bush’s battles suggested that the “souring” of the process–which, he argued, started with Democrats–was largely to blame. In 2003, while working as an aide to Sen. Bill Frist (R-Tenn.), Manny Miranda leaked Democratic memos about the Estrada filibuster to the conservative media. Since then, he’s worked outside the Senate encouraging conservatives to make ideological arguments about the nominees they’re blocking.

“As a working White House,” Miranda told TWI, “it really is stark how few nominations they’ve made. And in the past 10 years, this has all been racheted up.” Despite it all, said Miranda, Republicans in the Bush years were able to push through more nominees with more luck than the Democrats have had so far. But “in the Bush White House, at the end, they were having real trouble finding people to nominate because of this soured process.”

Over the weekend, Miranda criticized fellow conservatives who demanded a filibuster of Hamilton. Instead, he suggested a “real” filibuster that would have forced a debate on Hamilton, a chance for conservatives to explain why, exactly, they considered him so out of bounds. “The issue for conservatives,” he told TWI, “and really for Republican senators, is: Are they going to be consistent? Are they going to be principled? The Senate deserves to have the Senate respond to his nominations.”

Republicans have been content so far to explain the lack of “consistency” the way that DeMint did–Democrats wanted to raise the bar on confirmation votes, and the bar got raised. According to DeMint, Miranda’s argument about the effect of the filibusters–that it leads to delay but not debate–is valid, but hard to overcome. And the key reason is lack of media coverage when Republicans make their stands.

“We’re not being allowed the time,” said DeMint, “because when we allow them to come to the floor, we’re not getting time agreements. We need to expose them, and we’ve put out releases about them. But for the most part there’s not much interest in covering these nominees.”

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