Nuking the Filibuster
Published on Sunday, April 24, 2005 by Star Tribune (Minneapolis, MN)
Nuking the Filibuster
GOP Arguments Fail Smell Test
As the Republicans in the U.S. Senate consider invoking the "nuclear option" of prohibiting filibusters on judicial candidates, a bit of Senate history might be in order. It shows that the arguments being marshaled against the filibuster are sheer sophistry.

To end debate in the Senate and force a vote requires a successful motion for "cloture," which takes 60 yeas to pass. From the first days of the Senate, the principle of unlimited debate was the hallmark that set it apart from the House. Until 1917, Senate rules allowed no cloture of any kind on any issue.

In the face of World War I and at President Woodrow Wilson's suggestion, the Senate enacted Rule 22, which allowed cloture if two-thirds of the Senate voted for it. That was later pared to an affirmative vote of 60. But until 1949, cloture was prohibited on nominations of all kinds.

Senate Republicans, including Sen. Norm Coleman, argue that, in Coleman's words, "There has never before in the history of the Senate been a filibuster of a judicial nominee who could have been confirmed ...."

That is simply untrue and also beside the point. Writing in the National Law Journal, attorney Joshua Spivak says that "since 1789, 33 of the 148 nominees for the highest court have either been rejected by a vote of the Senate, had the voting on their nomination repeatedly postponed or filibustered into nonexistence or eventually bowed out. In the 19th century, more than a third of the nominees went down to defeat." More recent harmony, Spivak says, was due mostly to Democratic domination of both the presidency and Congress.

In 1968, however, President Lyndon Johnson nominated Supreme Court Associate Justice Abe Fortas to succeed Earl Warren as chief justice. Republicans, joined by a few conservative Southern Democrats, successfully filibustered Fortas' nomination. Cloture was rejected on a vote of 45 for cloture, 43 against. Fortas was denied the up-down vote on the Senate floor Coleman says he deserved. Coleman waves that aside, asserting that Fortas would have been rejected anyway. In fact, the historical record strongly suggests he would have won, but that ultimately is unknowable absent that up-down vote.

Furthermore, both of Chief Justice William Rehnquist's nominations -- as associate justice and chief -- were filibustered, albeit unsuccessfully. In fact, the Congressional Research Service reports that between 1967 and 2002, cloture was sought on filibusters of 17 judicial nominees. In 11 of these cases, cloture was successful; in six, it was not (although in all but the Fortas case a way eventually was found to reach common ground and confirm the nominees).

Coleman's argument is beside the point for two reasons. First, before 1949 the issue was moot because cloture was disallowed. Second, while filibuster is the only tool available to the Senate minority, it is not the only tool by which a president's judicial nominees may be sunk.

In his statement on the "nuclear option," Coleman says that senators have a "right to vote 'yes' or 'no' on judges." In fact, they have that right in a cloture vote; it simply takes 60 of them to advance a nomination. But the majority Republicans have been very good at denying senators that right by simply refusing to either allow any vote at all or by refusing in committee to even schedule a hearing on a nominee.

In 1996, the Senate confirmed three of President Bill Clinton's nominees in January, but then Senate Majority Leader Trent Lott refused to schedule further votes. By June, 41 of Clinton's nominees were awaiting Senate floor action.

One of those nominations was of Ann Montgomery to the federal bench in Minneapolis. Sen. Paul Wellstone had to tie the Senate in knots to force a vote on Montgomery's nomination. She eventually was confirmed by unanimous consent.

Sen. Orrin Hatch, former chairman of the Senate Judiciary Committee, was singularly successful in rejecting Clinton's nominees by simply refusing to even hold a committee hearing on them. In total, more than 60 of Clinton's nominees were bottled up in the Senate this way.

Here's the question: Why was it appropriate for a single, powerful majority party senator (whether Lott or Hatch) to deny senators the right to vote yes or no on a nominee, but it is inappropriate for 41 senators in the minority to prevail in an actual up-or-down vote to reject a nominee?

© 2005 Star Tribune