Distorting the History of the Filibuster

Monday, April 18, 2005

Distorting the History of the Filibuster

As an apparent showdown over judicial filibusters looms in the Senate, Mother Jones magazine writer Michael Scherer reviews the history of the filibuster in an interesting article:
Both sides in the current debate find it convenient to ignore much of this history. The "200-year-old American rule" that Reid says allows each Senator to say his or her piece does not actually exist, as such, given that the cloture rule has been in place since 1917.

To make things more complicated for Reid, his own party has a mixed record of supporting the right to filibuster. As recently as 1995, 10 sitting Democratic senators, including Connecticut's Joe Lieberman and former presidential nominee John Kerry, voted to allow a bare majority of Senators to end a filibuster, a proposal that, in its effects, closely mirrors Frist's current plan.

At the time, they were enraged by Republicans success at filibustering much of President Clinton's legislative agenda ... Their effort garnered only 19 votes.

... Republicans find themselves negotiating an even greater minefield of historical fact. Frist's "200 years of tradition" allowing up-or-down votes on judges is a figment of a partisan imagination.

Frist's Republican colleagues bottled up dozens of Clinton nominees in committee during the late 1990s, denying or delaying many up or down votes. Once on the floor, Senators often placed holds on the nominees, effectively preventing votes. Republicans and Democrats also tried regularly to prevent cloture for judicial nominees -- at least 12 times since 1980, according to the Congressional Research Service.

As recently as 2000, Frist himself voted to deny cloture to a Clinton nominee, Richard Paez. According to a press release at the time from Frist's colleague, Sen. Bob Smith (R-N.H.), the effort was a "filibuster" designed to "indefinitely delay the confirmation of Paez."

While all of these efforts to filibuster judicial nominees by denying cloture eventually failed, there was one notable success.

In 1968, a group of more than 40 Senators, led by Republicans, blocked the nomination of Abe Fortas for chief justice of the Supreme Court ..... At the time, Senator Robert Griffin, a Michigan Republican who opposed Fortas, championed the right to filibuster judicial nominees. "It has not been unusual for the Senate to indicate [disapproval of] a nomination by just making sure that it never came to a vote on its merits," Griffin said.

Frist and other Republicans now claim the Fortas filibuster was not, in fact, a filibuster. The reason: There was never a recorded vote showing that a majority of the Senate would have approved Fortas had a vote been allowed. The congressional scholar Norman J. Ornstein has likened this reasoning to a killer who claims, "Yes, I shot him, but I can't be charged with murder because he would have died of cancer anyhow."

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