Gary Glenn: Against filibusters before he was for them

A collection of conservative leaders sent a letter (PDF) to Senate Republicans yesterday demanding that they filibuster the nomination of Judge Sonia Sotomayor for the Supreme Court. Among the signers of that letter was Gary Glenn, president of the American Family Association of Michigan.

But let’s set Professor Peabody’s Wayback Machine for April 4, 2005, when Glenn joined dozens of other conservative leaders in signing a letter to Senate Republicans, who were in the majority at the time, demanding that they bring an end to all judicial filibusters. That letter said:

In recent times, partisan special interests have threatened judicial independence again by inserting ideology into the Senate confirmation process of federal judges. Now the Minority has changed 215 years of Senate tradition by abusing the filibuster for the first time against nominees with clear majority support.

The Senate must act as steward of the federal courts by returning the power to confirm judges to the Constitution’s simple majority requirement. While it is the right of the President to expect the Senate to give Advice and Consent within a reasonable period of time, it is the duty of every Senator to offer Advice and Consent through an honest, up or down vote.

Moreover, the unprecedented abuse of the filibuster is a device intended to undermine the prerogatives of the Presidency as well as the tradition of the Senate. It must not stand. You must not waver. The President, this President, must have the freedom to nominate appellate judges and Supreme Court justices who will restore the courts to their constitutional role.

We are convinced that the proof of history is overwhelming that the Constitutional Options are a conservative response that do not threaten but will restore Senate debate rules and tradition.

But the new letter now urges Republican Senators to do the very thing that they wanted banned 4 years ago when a Republican was in the White House and Senate Democrats were threatening to filibuster judicial nominees. But it seeks to distinguish between those filibusters and the kind they are demanding now:

There has been much distraction in discussing whether the Republican Minority would or could muster a “Democratic filibuster,” i.e., a filibuster used to obstruct a Senate confirmation vote. We recognize that Senate precedent has been altered by the systematic use of the “Democratic filibuster.”

As Senator Ben Nelson of Nebraska (D) recently pointed out, a minority of Senators may now be well-entitled to prevent a cloture vote of a Supreme Court nominee who is, as Senator Nelson put it, an “activist.” Such a result could similarly be justified by a nominee who is unqualified, with no judicial or jurisprudential record, or who is clearly an adherent of “Living Constitution” jurisprudence, or otherwise likely to bring to the court their personal politics.

We remind you that the Republican Party Platform, which almost all Republican Senators voted to adopt, establishes that you will not support a “stealth nominee” or a nominee who does not display fidelity to the Constitution.

Even so, no credible person, if any, has called on Senate Republicans to brandish a “Democratic filibuster.” We call on you instead to display leadership, if the nominee merits it, in preparing for the use of the traditional filibuster, not intended to obstruct, together with moderate Democrats, so that the debate on the Senate floor is appropriately long and, therefore, suitably catalyzed to the American people.

So is there really a distinction between a “Democratic filibuster” and a “traditional filibuster”? Not really. Senate rules no longer require that in order to filibuster, a Senator or group of Senators continue talking 24 hours a day. Under current rules, it is enough merely to vote not to close the debate, which famously takes 60 votes to do.

But whether one keeps the debate open by talking hour after hour, or keeps the debate open merely by voting against cloture, the result is exactly the same – no final vote can be taken on the matter. So whether they do this in the traditional manner or not, if the Republicans filibuster the Sotomayor nomination it will be under the exact same rules, and for the same result, as those newfangled Democratic filibusters. The nomination still will not get a vote unless 60 Senators vote to end the debate.

The letter from Glenn and others four years ago did not call to an end to a certain type of judicial filibusters, it called for an end to all judicial filibusters because they were a “threat to the judicial independence” and that it was “unprecedented” and “abusive” to filibuster “nominees with clear majority support.”

“You must not waver,” Glenn and others implored in 2005. Apparently they left out the end of that sentence, “…unless a Democrat gets elected.”