Sen. McCain's Judicial Filibuster Flip-Flop

May 27, 2011 3:16 pm ET — Jamison Foser

Explaining his support for the filibuster of the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals, Sen. John McCain (R-AZ) said the fact that Liu does not share McCain's "philosophy" meets the "extraordinary circumstances" standard he set for filibustering judicial nominees as part of the Gang of 14 agreement in 2005. McCain emphasized that he opposed Liu solely because of their purported philosophical differences, and justified his decision to support a filibuster on such ground by noting that Miguel Estrada "was filibustered by the Democrats seven times because many Democrats disagreed with Mr. Estrada's judicial philosophy."

Though McCain portrays his support for the Liu filibuster as consistent with his participation in the Gang of 14, it in fact represents a complete reversal.

Appearing on CNN on July 1, 2005, McCain explicitly said philosophical differences would not constitute "extraordinary circumstances" under the Gang of 14 agreement:

I'm confident that President Bush will appoint a Supreme Court justice who shares his philosophy, which is a conservative philosophy. But I don't think it would meet the bar of — I don't believe it will meet the bar of a "extraordinary circumstance."

The same day, Congressional Quarterly reported:

If members of the group disagree about whether a nominee meets the pact's standard of "extraordinary circumstances" for a filibuster, the deal could fall apart.

McCain said the conservative philosophy of a nominee alone will not be enough to meet that standard.

"That had to do with the qualifications of the individual," McCain said, adding that senators should not be surprised by the nomination of a conservative after Bush made clear on the campaign trail that his picks would probably come from a list of conservative candidates.

Conservative attorney C. Boyden Gray, who served as White House counsel to the first President Bush and in multiple positions in the second Bush administration, explained the standard McCain set:

Both the — McCain and Lindsey Graham, Senator Graham, were very clear on that point over the weekend, that the deal, the so-called group of 14, gang of 14, rules out philosophy as a ground for objection. If there's a fatal flaw ethically or some other problem, OK. But philosophy is not a ground for filibuster. And if the Democrats try that, I'm quite sure that the Republicans seven will come down and do the constitutional option to eliminate the filibuster. [Fox News Channel, July 5, 2005]

And during an October 3, 2005, interview with Charlie Rose, McCain indicated he had previously voted for judicial nominees despite disagreeing with their philosophy "because elections have consequences":

I think elections have consequences, and that is one of the consequences of a presidential election. I voted for Judge Breyer and Judge Ginsburg, even though I disagreed with their philosophy, because elections have consequences. And my view is we re not a rubber-stamp, but there has to be some overriding reason to reject a nominee of the president. [Charlie Rose, 10/3/05]

Unfortunately, McCain seems to be having trouble coming to terms with the fact that the 2008 presidential election had consequences, too.

Contrary to McCain's invocation of Democrats' 2003 filibuster of Miguel Estrada as justification for his filibuster of Liu, McCain has previously indicated that Estrada's nomination would not have met the "extraordinary circumstances" bar. Here's McCain on the May 25, 2005, broadcast of Hannity & Colmes:

MCCAIN: We've made an agreement that they will only filibuster under, quote, "extraordinary circumstances." [...]

HANNITY: If there's a nominee like a Miguel Estrada, if there is a nominee like a Robert Bork or a Scalia or a Thomas, and the Democrats say that's an extraordinary circumstance, will you then join with Bill Frist and go forward with that option, because you feel that they will have broken the agreement?

MCCAIN: I will — I can't name those names because I never examined any of them that carefully although Estrada clearly was qualified. But if we make a judgment that these nominees are extraordinarily unqualified, we'll agree with them. But if they're not, then we will — we will go ahead and go forward. [Fox News, Hannity & Colmes, May 25, 2005]

So, in 2005, McCain indicated that Democrats' philosophical objections to Estrada did not constitute "extraordinary circumstances." Now, McCain invokes those objections in order to justify his claim that his philosophical objections to Liu do constitute such circumstances.

McCain's abandonment of his own previously stated standards for filibusters probably shouldn't be surprising: During an April 14, 2005, Hardball appearance, McCain telegraphed his intentions to filibuster future Democratic nominees solely because of their liberalism:

I will vote against the nuclear option. [...] Look, we won't always be in the majority. I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress. Why? Because history shows it goes back and forth. I hope it's 100 years from now, but it will happen. And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?

Despite repeatedly saying throughout 2005 that philosophical disagreements did not justify Democratic filibusters of Republican nominees, McCain suggested Republicans should filibuster future "liberal" nominees of Democratic presidents. That's as clear as double standards get. 

To be fair, though, McCain did articulate an "extraordinary circumstance" in which it would be acceptable to oppose a Republican nominee:

Do you see any hard evidence that Harriet Myers is the Scalia-Thomas type constitutionalist Bush promised to name to the Court?

SEN. JOHN MCCAIN (R.-ARIZ.): She hasn't served on any courts, so obviously we don't have any court decisions, but clearly she has a very conservative position on most issues. She displayed those when she was head of the Texas Bar Association.

What issues were those?

MCCAIN:  I don't know. They just tell me that she did. I haven't reviewed her record.

If it doesn't pan out she did, would you consider a "no" vote?

MCCAIN:  If it turns out she's a communist I would consider a no vote.  Or, perhaps an arsonist, or an axe-murderer, but we have to review it.  I am favorably disposed towards her and want to see the hearings.  That's why we have the hearings.

According to John McCain, the liberalism of a Democratic nominee is sufficient to justify a filibuster — but philosophical disagreements aren't legitimate reasons to filibuster a Republican nominee. But at least we know he'd consider voting against a Republican nominee who is an axe murderer. No wonder he got that reputation for being a man of principle.