Wednesday, December 01, 2010

Chemerinsky now dislikes filibusters?

There is Existing History of Filibusters Against Supreme Court Nominees
Los Angeles Daily Journal, May 21, 2010, at 7

Erwin Chemrinsky -- legal scholar turned liberal talking head -- again is trying to use his soapbox to mislead and re-write history. In his most recent [Daily Journal] opinion piece (Kagan Commentary Misses the Point, May 19, 2010) he writes, "[t]here is almost no history of filibusters against Supreme Court nominees. Forty-eight Democrats voted against Clarence Thomas and 42 against Samuel Alito Jr., but these are not filibusters." What he fails to mention (as I am sure he remembers) is that then-Senator Barack Obama and practically all other Democratic presidential contenders voted to filibuster Alito; they simply did not have enough votes to succeed. Their failure was in part thanks to the so-called "gang of 14" which compromised the standstill between the unprecedented number of filibusters against lower court judicial nominees (Charles Pickering Sr., Janice Rogers Brown, Priscilla Owens, Miguel Estrada, etc.) and the Republican threat of the "nuclear option" to do away with filibusters (at least vis-à-vis judicial appointments). It was for this reason that Alito (and possibly Chief Justice John G. Roberts) was not filibustered (they did not have enough votes).

As can be seen on this exchange between Chemerinsky and a questioner, posted on the Washington Post website, Chemerinsky was in favor of the filibuster of Alito (and other judicial nominees):

Fairfax, Va.: I have always thought that the Gang of 14 "Compromise" was really a total cave-in by the Democrats wherein they agreed to eviscerate the filibuster rather than fight for it. What is your opinion about that agreement?

Erwin Chemerinsky: The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple. I am not sure why Democrats went along with the compromise unless they felt that they did not have the votes to keep the filibuster and it was the best they could do.

However, now that the tables have turned, "there is almost no history of filibuster of Supreme Court nominees." Then again, maybe he was capturing the existing history by saying there is "almost" no history of such a thing.