University of California law professor John Yoo -- who is most famous for drafting the so-called “torture memos” -- used his May 2 Philadelphia Inquirer column to urge a filibuster of Elena Kagan, Merrick Garland, or Diane Wood should President Obama nominate one of them to be a Supreme Court justice. What does Yoo think is so radical about these three people, all of whom are widely reported to be on Obama's short list, that a filibuster is in order? Apparently not much. Yoo writes that a filibuster “would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies.”
From Yoo's column, headlined “Supreme Court sanity calls for filibusters” :
Should senators filibuster Elena Kagan, Merrick Garland, or Diane Wood for the Supreme Court? Yes, if there is any hope of fixing the broken appointment process and restoring limited constitutional government.
The three are the most-often-mentioned nominees for the seat of Justice John Paul Stevens, 90, who last month announced his retirement after 35 years on the high court. A filibuster to prevent a confirmation vote on his replacement would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies.
Over the years, Senate Democrats have destroyed the confirmation process by turning it away from qualifications to a guessing game over how court nominees might vote on hot-button issues such as abortion, the death penalty, and racial quotas. They began the degradation of the advise and consent role with the 1987 rejection of Judge Robert Bork, who would have been one of the most qualified justices in the history of the Supreme Court, and the outrageous effort in 1991 to smear Clarence Thomas (for whom I served as a law clerk). They continued the descent with the filibuster of a slate of excellent picks for the lower courts by George W. Bush, and they reached a new low with their votes against John G. Roberts Jr. and an attempted filibuster against Samuel A. Alito Jr.
The lack of sober analysis of these nominees' records is not surprising. Conservative media figures and Republicans have already made it clear that they will oppose whoever Obama nominates. And recall that the legal analysis Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public.
A couple more points: First, it's a pretty sad argument that, whatever the merits of Kagan, Garland and Wood, they should be filibustered because Democrats started the filibusters. But even if we were to play that game, what about the fact that before “the filibuster of a slate of excellent picks for the lower courts by George W. Bush,” the Republicans blocked President Clinton's nomination of Kagan to be an appellate court judge? Clinton nominated Kagan to be a D.C. Circuit judge on June 17, 1999, with Republicans in control of the Senate. Republicans did not give Kagan a hearing, they did not hold a vote on her in the Judiciary Committee, they did not allow her nomination to come to the floor, and they certainly didn't allow a vote on her nomination. Her nomination just sat there and died a quiet death when the Senate adjourned for the year in 2000 and the Supreme Court selected George W. Bush to be the next president.
Second, in his column, Yoo attacks Obama for opposing the nomination of John Roberts, in part, because Obama “disagreed with ... the 'depth and breadth of [Roberts'] empathy.' ” Yoo states that, in opposing Roberts, Obama and his Senate colleagues created a “new confirmation standard” that “allows only the mutely ambitious on the bench, lawyers whose only distinction is a silent voice and an inkless pen. Republicans can put an end to this race to the bottom only by filibustering Democrat judicial nominees in return.” Just about a year ago, when Obama was also considering who to nominate for the Supreme Court, Yoo also attacked Obama for citing empathy as an important quality in a judge.
But Yoo's attack on the importance of empathy is hypocritical. Yoo was not nearly as negative about demonstrations of empathy by a judge when he described the reasoning behind the judicial decisions of Justice Clarence Thomas, for whom Yoo clerked. To the contrary, in a review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins) -- in which Yoo praised Thomas' “unique, powerful intellect” and commitment to “the principle that the Constitution today means what the Framers thought it meant” -- Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.