The Lichfield Group

This column appeared in the April 5, 2005 edition of Roll Call. (subscription required)

As Paris was worth a mass for protestant King Henry IV of France, clubby relations with fellow Democrats was worth apostatizing on judicial appointments for Colorado Senator Ken Salazar.

Mr. Salazar entered the United States Senate celebrating President George W. Bush’s nomination of William G. Myers III to the United States Court of Appeals for the Ninth Circuit. Along with 14 other state attorneys general, he effused in a January 30, 2004 letter that the nominee displayed “outstanding legal reasoning” regarding endangered species, Indian affairs, federal lands and water, timber, and fish and wildlife issues. Salazar showcased his support of Myers to prove non-partisanship and Sir Thomas More-like devotion to principle. In a pre-election interview with the editorial board of the Rocky Mountain News, the Senator-elect championed the right of judicial nominees to a Senate floor vote on confirmation, i.e., he opposed the Democrats’ filibustering of 10 of the President’s appellate choices to foil appointments by simple Senate majorities, the constitutional standard.

These statesmanlike views conflicted with the encyclicals on judges issued by the Senate Democrat leadership. Mr. Salazar was greeted at the Nation’s Capitol with all the enthusiasm of the Pope towards Martin Luther and King Henry VIII. Democrat heavyweights summoned the junior Senator from Colorado to issue an ultimatum: either retract his support for Myers and defend the Democrat filibustering of Bush’s judges, or expect irrelevancy in the Democrat Party. They did not know much about the President’s constitutional power to appoint, or the history of the filibuster rule. But they were masters at putting the fear of God into recusants from Democrat dogmas.

Senator Salazar’s canticle over judges instantly changed. He confessed to the Rocky Mountain News (February 18, 2005) that he was no longer committed to vote for Myers. Indeed, he urged President Bush to withdraw Myers’ nomination. With impeccable casuistry, the Senator amplified: “The perspective I had (at the time of the letter) was one that came from serving as attorney general and working with Bill on Western issues. I now have a broader responsibility of voting up or down. I have to look at his record.” But Salazar had examined Myers’ record before praising his judicial qualifications. Less than three weeks before, as noted above, he had acclaimed the nominee’s credentials in addressing an array of knotty legal subjects: endangered species, Indian affairs, etc.

Salazar also somersaulted on a floor vote for all nominees. He now laurelled filibusters as a legitimate Democrat weapon to thwart the majority in the Senate and President Bush on judicial appointments. In other words, the minority should dictate to the mainstream.

Nothing is inherently wrong in Salazar’s flip-flops. As President Abraham Lincoln advised, a man who does not grow wiser by the day is a fool. And Ralph Waldo Emerson sermonized that a “foolish consistency is the hobgoblin of little minds….” But Salazar articulated no plausible reasons for abandoning his prior views, other than to curry favor with Senate Democrats. He was unable to cite a single legal opinion of Myers’ insinuating incompetence or bias.

Senate rules did not permit judicial filibusters until 1949. Yet Salazar was unable to cite a single judicial appointment prior to that date that should have been rejected by a filibuster. The defeat of Supreme Court nominee Robert H. Bork in 1987 by a floor vote of 58-42 confirms that filibusters are superfluous to preventing appointments outside the popular mainstream. In other words, judicial filibusters smack of obstructionism for the sake of obstructionism.

Senator Salazar’s conversion from statesman to Democrat partisan shows that expediency is generally preferred to martyrdom. In the United States Senate, the more things change, the more they stay the same.

Bruce Fein was former associate deputy attorney general under President Ronald Reagan.