Leading conservative activists are split over whether to filibuster Judge David Hamilton, whose nomination to the 7th Circuit will serve as a test case for President Barack ObamaBarack Hussein ObamaJill Biden campaigns for McAuliffe in Virginia Overnight Energy & Environment — Presented by ExxonMobil — Biden administration breaks down climate finance roadmap Pelosi hilariously scolds media for not 'selling' .5T spending bill: 'Do a better job' MORE’s more controversial appellate court picks.
Twenty four leading conservatives have signed a memo urging Republican senators to filibuster Hamilton, setting the stage for the first protracted Senate fight over one of Obama’s judicial nominees.
Hamilton will likely receive an up-or-down vote because Democrats control 60 seats, but conservative and liberal advocates say a filibuster would be significant because it would serve as a precedent for Obama’s future judicial nominees.
But the effort to build momentum for a filibuster has become snagged on dissent within conservative circles over whether it is the right strategy. The outcome of the debate may influence how Senate Republicans, such as Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump criticizes Justice for restoring McCabe's benefits McCabe wins back full FBI pension after being fired under Trump Overnight Hillicon Valley — Apple issues security update against spyware vulnerability MORE (R-Ala.), proceed on other controversial nominees.
Manuel Miranda, a former Senate GOP leadership aide and chairman of Third Branch Conference, a coalition of conservative leaders that has taken an active role in several high-profile debates of judicial nominees, has questioned the push to block Hamilton.
“Respectfully, I disagree with this rally to ‘vote no on the cloture’ for this or any nominee that one would expect a Democratic president to nominate, if he sole purpose is to block or ‘stop,’ and not merely and genuinely to prolong a debate,” Miranda wrote in an e-mail to fellow conservatives.
Miranda’s group was formerly known as the National Committee to End the Judicial Filibuster. He was one of scores of conservative leaders who sent a letter in 2005 to Senate GOP leaders demanding they abolish the filibuster of judicial nominees.
While Miranda still opposes the filibuster of controversial nominees, other conservatives are warming up to the idea with a Democratic president in the White House.
Two dozen conservatives led by former Reagan-era Attorney General Edwin Meese have signed a letter calling on senators to invoke the justification of “extraordinary circumstances” to block Hamilton’s nomination.
“Judge Hamilton is precisely the kind of liberal judicial activist who would use our federal courts as his own superlegislature,” they wrote. “The Senate should vote no on the cloture vote to stop his nomination.”
Nine of the individuals who signed the memo also signed the 2005 letter to GOP leaders calling for them to abolish the filibuster of judicial nominees, an apparent conflict that leaves some conservatives uncomfortable.
Alfred Regnery, the publisher of the American Spectator, who signed the memo urging a filibuster of Hamilton, acknowledged that a considerable number of fellow conservatives disagree with him.
"There's a pretty strong debate within the conservative movement on the filibuster of judges and it splits pretty much down the middle," he said.
But Regnery said that Hamilton's record fits the criteria of extraordinary circumstances that centrist Republican and Democratic senators have said could warrant filibuster.
"We're opposing Hamilton on the merits more than anything else," he said.
The debate within conservative circles could have an impact on Sessions, the senior Republican on the Judiciary Committee, who was himself blocked by the Judiciary panel when he was nominated for a federal judgeship in 1985.
He has since spoken out against using obstructionist tactics against judicial nominees.
“Of the many reasons why we shouldn't have a filibuster, an important one is the Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote, and simply "shall advise and consent" on nominations," Sessions said in a 2003 floor statement.
"Historically, we have understood that provision to mean — and I think there is no doubt the Founders understood that to mean — that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote," he said. "That is why we have never had a filibuster. People on both sides of the aisle have understood it to be wrong."
But Sessions appears to be contemplating a filibuster of Hamilton, even tough he has the support of GOP Sen. Dick Lugar (Ind.). (Hamilton is also from Indiana.)
In an Oct. 30 letter to colleagues, Sessions wrote that Hamilton should not be promoted to the 7th Circuit and repeated buzzwords that lawmakers have used to justify filibusters of nominees.
“This is one of those extraordinary circumstances where the president should be informed that his nominee is not qualified,” Sessions wrote.
Miranda said that conservative leaders would better serve their ultimate goal — keeping liberal, activist judges off the federal courts — by allowing a lengthy debate and vote on a controversial pick such as Hamilton.
“This is the kind of thing that’s a distraction and gives people the appearance of effort but really isn’t any effort at all,” Miranda said in an interview. “The real effort is to get our there and debate and let people know who David Hamilton is.”
A lengthy floor debate, Miranda argues, would highlight Hamilton’s record for the public.
Curt Levey, executive director of the Committee for Justice, a conservative group that opposes liberal judicial nominees, was one of the leaders who signed Meese’s memo.
But Levey argues that blocking a final vote on Hamilton would not be inconsistent with the outspoken positions that conservatives took against the Democratic filibuster of former President George W. Bush’s judicial nominees.
Levey argued that Democrats blocked Bush’s nominees “wholesale,” without regard to the circumstances of each individual pick. He also noted that a bipartisan group of senators, known as the Gang of 14, had since come up with a standard that would allow for the filibuster of judicial nominees in “extraordinary circumstances.”
Levey also said it would be foolish for conservatives to “unilaterally disarm” by renouncing the filibuster of judicial nominees when Democrats would likely use the tactic once a Republican wins the presidency.
Levey said that senators could vote to begin debate on Hamilton’s nomination but then vote to deny a final vote, giving the public an opportunity to hear about the nominee’s record.
Marge Baker, executive vice president for policy and program at People for the American Way, a liberal group that supports Hamilton, said the debate over Hamilton would have implications for future nominees.
“This is an important vote, an important test,” said Baker. “It’s a test of whether Republicans will succeed in reframing the debate of the nominations and succeed in putting politics ahead of justice.”
CORRECTION: An earlier version of this article misattributed a statement to Sen. Jeff Sessions (R-Ala.). Sessions was quoting a Democratic senator in the statement, which has been deleted, not speaking for himself.