The Senate got hit by fallout from the so-called nuclear option Thursday when Majority Leader Harry Reid, D-Nev., tried to confirm a controversial judicial nominee at the last minute before a recess. Republicans demanded he provide the full 30 hours of debate required by Senate rules.
"The history of most nominations is there's been a lot of bipartisan cooperation to process non-controversial nominations," Senate Minority Whip John Cornyn, R-Texas, told the Washington Examiner after the floor fight. "This one, there is some controversy associated with it."
Asked to elaborate on that controversy, a Republican Senate aide provided a letter from conservative activists who believe that Michelle Friedland, President Obama's nominee to the United States Court of Appeals for the Ninth Circuit, would make a liberal court even more hostile to conservative legal arguments, based on Friedland's past work promoting gay rights and her judicial philosophy.
"Friedland has a supremacist legal/judicial philosophy that seeks to arrogate legislative power by arguing that written laws mean nothing until judges say they do," a group of activists including Morton Blackwell and Penny Nance wrote to Sen. Jeff Sessions, R-Ala., in November. The letter includes this passage from a Columbia Law Review article Friedland wrote in 2004 (original emphasis):
"'There is no independent truth about the content of rights in state constitutions such that we can say that state judicial systems are inadequate to protect them. The rights are no more than what enforceable judgments of the state courts say that they are. If a state constitution provides that the state judiciary will be elected, then that fact should be taken into account in considering what it means for that state constitution to have created rights. That constitution only creates rights to the extent a judiciary accountable to the voters says it does, so, in effect, there is nothing for the judiciary to undermine. Accountable state courts thus by definition cannot undermine state rights, and they could allow useful democratic input to influence judicial lawmaking."
Republicans are blocking Friedland for no reason, Sen. Tom Harkin, D-Iowa, told the Examiner. "What the leader said is that, look, they said they want to vote on these on the Monday we come back," he said. "Why not just vote on them now? Everyone knows that they're going to get through, why hold them up for two weeks? Why hold them up for two weeks? Why not vote on them now? That's another delay, in other words, for no other reason."
Cornyn said Reid should expect as much given that he has stiff-armed Republicans on judicial nominations by invoking the nuclear option on Nov. 21, a change in Senate rules that has prevented Republicans from filibustering judicial nominees. Republicans contend that Reid had no authority to change the rules by a simple majority vote.
"What happens is the majority leader wants to break the Senate rules, which they did by invoking the nuclear option, and then when we're trying to apply the rules allowing for 30 hours [debate] post-cloture, he somehow thinks that's an unreasonable position," Cornyn said. "So, I think there'd be a lot more bipartisan cooperation, so everybody could be accommodated, but for the extreme position taken on the nuclear option."
The vote on Friedland is currently scheduled for late Friday, though that could change if either Reid or the Republicans relent in order to allow the senators to leave town for the Easter recess.
"Who knows, they're still jawing," Harkin said, when asked.
Cornyn said it's up to Reid, so, they'll vote tomorrow "unless the majority leader changes the time, [but] it doesn't sound like he's going to."