History and the Filibuster

The recent use of filibuster to prevent the President's judicial nominees from receiving an up-or-down vote in the full Senate is, if not unprecedented, at least very rare and a recent phenomenon. Save for the large number now being filibustered by Senate Democrats, the only previous use was during the confirmation of Abe Fortas for promotion from a Supreme Court justice to chief justice. In 1968, Republicans were concerned about the ascension of a liberal justice following the expansive rulings of the previous Warren Court. However, the Abe Fortas case was atypical since it was revealed in hearings that Fortas kept President Lyndon Johnson informed of the secret deliberations of the Court and had accepted what seemed to be excessive and inappropriate private payments for teaching a summer course at American University. This is hardly the precedent, Democrats should base their current opposition to nominees for whom the only objection is one of political philosophy.

The current debate about filibusters can have an important impact on future Senate actions. However, the current tussle is one of political wills, not of constitutional dimensions.

If the situations were reversed, we know that Republicans and Democrats would have different arguments. We know this because situations were once similarly reversed. During the Clinton administration, Republicans kept some of President Bill Clinton's nominees from coming to a vote on the Senate floor. Rather than needing a filibuster, Republicans were able to bottle up some nominations by the more conventional process of not reporting the nominees out of committee by a majority of the committee.

At that time Barbara Boxer (D-CA) had different position with respect to judicial nominees when she said, "It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor." Similarly Diane Feinstein (D-CA) averred, "Our institutional integrity requires an up-or-down vote." The dean of Senate Democratic Senators Edward Kennedy (D-MA) indignantly argued, "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote."

It must be the mark of a truly agile politician to be able to argue both sides of an issue with equal measures of sincerity. The question is now whether Republicans will call the Democrats

Go To Page: 1 2 3 4