With the official word that 89 year old Justice John Paul Stevens will step down from the Supreme Court at the end of this term, the second-ranking Republican in the Senate made clear his party wouldn't hesitate to filibuster Stevens' replacement. Asked if the GOP would resort to the obstructionist tactic it once routinely decried, Arizona's Jon Kyl announced Sunday, "it will all depend on what kind of a person it is." Of course, as his years leading the Republican "up or down vote" chorus showed, John Kyl's kind of person is one picked by George W. Bush.
Appearing on Fox News Sunday, Kyl the GOP could very well filibuster Barack Obama's next pick to the Court if the President chose to "nominate an overly ideological person." But while Senate Democrats never filibustered President Bush's nominees to the nation's highest court, Kyl would make so such promises:
I would prefer to go back to the situation where it is not done by either party, but the Democrats won that fight. They filibustered Miguel Estrada. He never got on the court. Seven other circuit nominees. So what we need to do is, I think, apply the rule that the Gang of 14 game up with a couple years ago that you don't filibuster except in extraordinary circumstances, and I'm willing to live by that general rule.
Of course, that's a far cry from Kyl's past declaration that, "It's never been the case until the last two years that a minority could dictate to the majority what they could do."
If that seems like a 180 degree turnabout for the junior Senator from Arizona, that's because it is.
Back in 2005, Kyl was at the forefront of then-majority Senate Republicans threatening Democrats with the "nuclear option" rule change to bar future judicial filibusters of Bush appointees. At a November 28, 2005 campaign event for Kyl, President Bush praised his ally's fight to block the filibuster:
"I can't thank Jon Kyl enough for making sure the judges I nominate get a fair hearing and an up or down vote on the floor of the United States Senate."
When now-Justice Samuel Alito came before the Senate Judiciary Committee for his confirmation hearing, Kyl as usual parroted the trusted GOP sound bite:
"I look forward to a dignified hearing followed by a fair up-or-down vote on the Senate floor."
But after receiving what President Bush called a "thumping" in the 2006 mid-terms, the Republicans lost their Senate majority. And now, "the Decider" when it comes to Supreme Court nominations will be Democrat Barack Obama.
In early 2008, that prospect moved the band of hypocrites at the Weekly Standard to praise John McCain for his role in preserving the judicial filibuster. While the Standard's Dean Barnett previously bemoaned McCain's "uncanny ability to drive virtually all conservatives nuts," Adam White and Kevin White in January lauded McCain's leadership in the "Gang of 14" that saved the judicial filibuster. Not because McCain's position on the so-called "nuclear option" was right in principle, of course, but because it preserved the ability of a Republican minority to block future Democratic judicial nominations:
Finally, it must be noted that McCain's opposition to the nuclear option did not merely serve short-term conservative interests in the specific context of Bush's nominations; rather, it served long-term conservative interests in the federal bench generally. As McCain has warned, there will come a day--perhaps soon--when a Democratic president will nominate decidedly non-conservative justices and judges, and a Democratic Senate majority will want desperately to confirm them. When that moment arrives, conservatives will call on the Republican minority to utilize every tool in the Senate minority playbook to thwart those nominations--especially the filibuster...preservation of the filibuster threat may ultimately prevent the ascent of Supreme Court judges that Laura Ingraham and Rick Santorum would dearly regret.
For Jon Kyl, that moment arrived as soon as the votes were counted on November 4, 2008.
Within days of Barack Obama's election, Kyl fired the first salvo in the coming judicial war. Addressing the conservative Federalist Society in November 2008, Kyl regurgitated tried and untrue Republican sound bite about so-called "judicial activism." Then, Kyl warned his audience that he would filibuster Supreme Court nominees he deemed too liberal:
Kyl, Arizona's junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.
"He believes in justices that have empathy," said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.
Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.
After President Obama's inauguration, Republicans made clear that their "up or down vote" talking point was no longer operative long before word of Justice David Souter's departure was announced. In March 2009, all 41 GOP Senators signed a letter to President Obama warning, "If we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee." (Among those signatories was Oklahoma's James Inhofe who, while having previously suggested the judicial filibuster was unconstitutional, promised to block Obama's nomination of U.S. District Judge David Hamilton to the 7th Circuit Court of Appeals.)
Then in May, two days before President Obama announced his selection of Sonia Sotomayor to replace Souter, Kyl fired another filibuster shot across the bow:
Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench. The Arizona Republican acknowledged that his party likely does not have enough votes to sustain a filibuster, but he said nonetheless he would try to delay or derail the nomination if Obama ventures outside what Kyl called the mainstream.
"We will distinguish between a liberal judge on one side and one who doesn't decide cases on the merits but, rather, on the basis of his or her preconceived ideas," Kyl said.
In 1998, Senator Kyl was one of 28 Republicans who opposed Bill Clinton's nomination Sonia Sotomayor to the Second Circuit Court of Appeals. In 2009, he repeated that performance. But while Kyl ultimately didn't filibuster Sotomayor, for Republicans he resorted to the next best thing: mockery. During her confirmation hearings, Kyl lectured a surprised Sotomayor for 10 minutes in a rant on what he deemed her "relativism run amok."
During the height of the controversy over President Bush's judicial picks in 2005, Jon Kyl declared, "It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate." Alas, that was then and this is now. And since then, Jon Kyl learned to love the judicial filibuster.
(An earlier version of this piece appears at Perrspectives.)