WASHINGTON — Talk of filibustering the president's judicial picks is back -- even before Barack Obama has nominated anyone to the federal courts.
When the balance of power shifts in Washington, views on the virtues of filibustering tend to shift with it. Four years ago, the Senate Republican majority faulted the minority Democrats for threatening what they deemed an "unconstitutional filibuster" of President Bush's court nominees. Democrats then said they saw the filibuster as a needed check on extremism from the majority.
Now, both parties are adjusting their perspectives. In the Senate, the filibuster rule allows talk to prevent action. It takes 60 votes, not just a 51-vote majority, to cut off debate and bring about a vote.
In a letter to President Obama last week, the 41 Senate Republicans described choosing judges as a "shared constitutional responsibility." They recommended that Obama renominate three of Bush's failed nominees: Peter Keisler, Glen E. Conrad and Paul Diamond.
And if Obama and the Democrats do not obtain GOP senators' approval of court nominees in their home states, "the Republican conference will be unable to support moving forward on that nominee," the letter said.
For veterans of the wars over judges, this looked to be an opening salvo.
"Threatening filibusters of yet-to-be-named judicial nominees . . . is not a good sign," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.).
Nan Aron, president of the liberal Alliance for Justice, saw the Republicans as undergoing "a miraculous transformation. Having sought to do away with the filibuster during the Bush administration, they are now threatening to use it at the first opportunity," she said. "I'd say they are trying to intimidate the Obama administration and to galvanize their base."
"The Republicans are doing everything in their power to cement their reputation as the 'Party of No,' " added Kathryn Kolbert, president of People for the American Way.
Some conservatives, however, were cheered by the Republicans' early move.
"The letter is a remarkable show of strength and resolve on the matter of judges. I was encouraged that all 41 [GOP] senators signed it," said Wendy E. Long, counsel for the Judicial Confirmation Network. "This says they are ready to give intense scrutiny when extreme folks are being nominated."
Both sides agree that the issue of judges has an outsized importance to the parties' base constituencies, even if it is not a top concern of most Americans.
"Our polls show that judges is a good issue -- a huge winning issue for Republicans," Long said. "Obama won the election, but the American people don't agree with the Obama standard for judges."
During his eight years in office, Bush appointed 328 judges to the federal courts. This was third-most of any president, behind Presidents Reagan (384) and Clinton (379).
There now are 67 vacancies on the federal district and appellate courts. Obama is expected to make his first set of nominations in April.
Still, some Republicans say they are not ready to use the filibuster threat.
"Most conservatives feel we should stick with the principle that every nominee should get an up-and-down vote," said Curt Levey, executive director of the Committee for Justice, a group that lobbies for conservative nominees. "They want the Senate courtesies to be respected."
During the Bush era, Republicans repeatedly said the president's nominees deserved a vote on the Senate floor. However, Levey said, the GOP's reluctance to consider filibusters could change quickly. It "will change if [Democrats] try to jam through judicial activists," he said.
Four years ago, the Republican majority came close to abolishing the filibuster rule. With Vice President Dick Cheney in the Senate president's chair, they planned to change rules so judges could be approved by a simple majority. Opponents called this the "nuclear option" in the overheated rhetoric of the time.
The dispute was defused when a bipartisan group of 14 senators, including John McCain (R-Ariz.), brokered a deal that cleared the way for several of Bush's disputed nominees to win confirmation.
The filibuster survived it all, an outcome the Republicans could find valuable in an era of Democratic dominance.