In an editorial last month, The New York Times argued that the Senate should adopt President Obama’s plan requiring the Senate to vote on judicial nominees within 90 days—thus eliminating the filibuster as applied to those nominations. The Times notes that this is a “major change in position” from its stance that the filibuster “goes to the center of the peculiar but effective form of government America cherishes.” As Ed Whelan pointed out, this is not the first time the Times has reversed course on the use of the filibuster. In 1995, the Times argued that the Senate, or “the greatest obstructive body,” should stop using the filibuster as it had “become the tool of the sore loser.”
Whelan noted that coincidentally, the Times opposed the filibuster when Senate Republicans used it to stall President Clinton’s executive-branch nominees but “hailed” its existence when it was used to block a number of President Bush’s judicial nominees. So, we won’t be surprised when the Times’ latest reluctant revelation that the filibuster “threaten[s] to paralyze government” us reversed yet again during the next Republican administration.
As for Obama, he voted as a Senator to filibuster a number of President Bush’s nominees—including Supreme Court Associate Justice Samuel Alito and Court of Appeals Judges Janice Rogers Brown, William Pryor, Priscilla Owen, and Leslie Southwick (and as Whelan discusses, Senator Obama not only voted for filibuster but led the unsuccessful attack against Southwick). As president, Obama now opposes the filibuster since it’s been used to thwart some of his nominees, including Goodwin Liu and Caitlin Halligan.
What the Times doesn’t discuss is one rather obvious reason why President Obama is calling for the Senate to change its rules now. The proposal itself raises the stakes if conservatives in the Senate slow down confirmation of judicial nominations to challenge the President’s recent unconstitutional “recess” appointments to the Consumer Financial Protection Bureau and the NLRB. As Hans von Spakovsky discusses in this recent piece, conservative senators have yet to take meaningful action in response to the president’s purported recess appointments, but there reportedly are some senators who want to follow in the steps of Senator Robert Byrd, who infamously challenged President Reagan’s recess appointments by holding up a variety of Executive Branch nominees and even 5,000 military promotions. Eliminating the filibuster would further neuter the Senate in the face of future, illegal recess appointments—as the New York Times certainly knows.