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Sessions less likely to opt for filibuster

President Obama’s judicial nominees are less likely to face a Republican filibuster under Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsManchin flexes muscle in 50-50 Senate Udalls: Haaland criticism motivated 'by something other than her record' Ocasio-Cortez targets Manchin over Haaland confirmation MORE (R-Ala.) than they would have been under Sen. Chuck GrassleyChuck GrassleyGrassley to vote against Tanden nomination Grassley says he'll decide this fall whether to run in 2022 Yellen deputy Adeyemo on track for quick confirmation MORE (R-Iowa).

That is because the two men disagree on the “Schumer Rule,” a tactic used by Sen. Charles SchumerChuck SchumerHillicon Valley: Biden signs order on chips | Hearing on media misinformation | Facebook's deal with Australia | CIA nominee on SolarWinds House Rules release new text of COVID-19 relief bill Budowsky: Cruz goes to Cancun, AOC goes to Texas MORE (D-N.Y.) when he opposed judicial nominees because of legal or political ideology.

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Grassley told The Hill in a wide-ranging interview Monday that Republicans should adopt the “Schumer Rule,” which means he is more open to using the filibuster.

“I think you have to adopt the Schumer Rule that he established in 2002, I think it was, that what people believe actually ought to be taken into consideration [when deciding whether to filibuster],” Grassley said.

Prior to the establishment of the Schumer Rule, Grassley said he would not have thought to oppose, let alone filibuster, a judicial candidate who was qualified and showed the proper legal temperament and the ability to compare the facts of a case to the law.

Sessions, however, disagrees.

“I don’t agree with the Schumer standard — I don’t agree with it at all,” he said during an interview Tuesday.
Grassley’s tough talk has taken some Republicans by surprise since he is seen generally as more centrist than Sessions.

“Sounds like Grassley is to the right of Sessions on that one,” said  a Senate GOP aide who has worked extensively on judicial nominations.  

“Grassley hasn’t been very vocal on the issue of judicial nominations.”

One conservative activist who has specializes on judicial issues said he suspected Grassley was adopting a tough posture to ingratiate himself with conservatives.

The activist said Obama's court nominees "absolutely" would be more  likely to face filibuster under Grassley's standard but he expressed  doubt whether the Iowa lawmaker will follow through.

“The prerequisite for that is Grassley sticking to his guns and I don't think that’s going to happen,” who requested anonymity because he was characterizing a Republican senator’s position. “Grassley is posturing.”

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Sessions will serve as ranking Republican on the Judiciary Committee for the remainder of the 111th Congress and then hand the top spot over to Grassley in 2011.

The two men’s different philosophies could mean that Obama’s early nominees to the Supreme Court and other federal benches would have an easier time receiving Senate confirmation.

Sessions argues that to oppose a judge for political reasons assumes that it is acceptable for judges to craft legal opinions based on their own personal ideology.

“That goes against the classical American understanding of law, that when a judge puts on a robe and takes an oath, he’s not going to let his personal views affect his legal decision-making process.

“Once we say it’s perfectly natural that judges are political beings and will make political decisions, then we’ve eroded the moral authority of law.”

But Schumer, a member of the Democratic leadership who sits on the Judiciary panel, argues that it is naïve to assume that judges don’t see the law through the lens of their personal political ideology. Schumer says that ideology has always played a role in the courts and should in Senate debate as well.

{mospagebreak}“I said ideology should play a role because it always has and might as well be above the table,” Schumer said in an interview.

Grassley thinks it’s time for Republicans to adopt this standard, which would subject many more of Obama’s nominees to Republican filibusters.

“Since Schumer brought into the debate that other things ought to be considered because you can’t trust a judge to look at the facts and the law,” said Grassley, “I think there’s a whole new precedent set that I think Republicans must follow.”

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Grassley also said Republicans should be even tougher on nominees to the Supreme Court because “they’re the final court.”

Grassley is set to take over as the senior Republican on judicial issues in 2011. Sen. Arlen Specter (Pa.) left the top GOP slot on the Judiciary Committee open when he switched to the Democratic Party last week. Grassley was next in line for the post but decided to remain as the senior Republican on the Finance Committee for the rest of this Congress, letting Sessions serve atop Judiciary for the next 18 months.

With Grassley calling for Republicans to take a hard line on Obama’s judicial nominees, the new president may be happy that Sessions will serve as the Senate Republican in charge of his nominees until the midterm election.

Sessions is the only member of the chamber to have been nominated for federal judgeship and rejected by the Senate, an experience he said would give him empathy for other nominees. But Sessions was elected in 2002, which means he has not served during a Democratic administration.

President Reagan nominated Sessions in 1985 to serve as a district court judge in the southern district of Alabama, but the Senate Judiciary Committee, then controlled by Republicans, rejected him by a vote of 10-8 because of statements that some critics viewed as racially tinged.

Sessions has warned his colleagues to treat Obama’s judicial picks fairly.

Sessions also said that senators should not filibuster judicial nominees unless there are “extraordinary circumstances,” a standard set by a bipartisan group of lawmakers known as the Gang of 14.

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While Republicans may disagree over the appropriate standard for filibustering judicial nominees, GOP senators agree that Obama’s Supreme Court nominee should interpret the Constitution strictly.

Sen. Orrin HatchOrrin Grant HatchHow President Biden can hit a home run Mellman: What happened after Ginsburg? Bottom line MORE (R-Utah) also called for a strict constructionist — “somebody who will interpret the laws rather than make them” — and said that he also believes a filibuster can be avoided.

“Republicans have never filibustered a Supreme Court nominee, and I don’t think we’re going to start now,” he said.

Senate Majority Whip Dick DurbinDick DurbinMurkowski undecided on Tanden as nomination in limbo Democrats ask FBI for plans to address domestic extremism following Capitol attack Progressive support builds for expanding lower courts MORE (D-Ill.) downplayed the possibility of a filibuster, saying eight Republicans have personally promised him they will not revert to the tactic.

“Historically, Supreme Court justices have never been filibustered, and I would hope they would not consider that,” Durbin said.

Some Republicans, however, argue that Democrats attempted to filibuster Justice Samuel Alito in early 2006.

They note that more than 20 Democrats voted against a motion to cut off debate on Alito’s nomination.