The "Unprecedented" Filibuster

I can't be the only one who is sick and tired of hearing the right blather on about the "unprecedented" filibusters over a handful of Bush's judicial nominees. Bill Frist claims that the Democrats "radically broke with tradition and precedent and launched the first-ever filibuster of a judicial nominee who had majority support" in 2003. Not only is that a lie, Frist himself attempted a filibuster of a Clinton nominee for the 9th circuit, Richard Paez, in March of 2000. He was one of 14 Senators to vote for a filibuster of Paez. In fact, the Republicans attempted six filibusters of Clinton court nominees while he was in office, all of which failed for lack of votes. And of course there is the example of a Republican filibuster of Abe Fortas when he was nominated to be Chief Justice of the Supreme Court in 1968. And this is just the tip of the iceberg, as Judd Legum and Christy Harvey noted a few weeks ago:

That wasn't the first time Republicans contaminated the judicial nomination process. During the Clinton years, they used a slew of questionable legislative ploys to smother judicial nominations quietly while in committee. One favorite tactic: In 1994 Senator Hatch added language to the Senate rules for confirming nominees. His objective: to allow a single senator to easily--and secretly--block nominations from leaving committee. It worked. Judge Marsha Berzon's nomination was secretly stymied for more than two years. (Senator Bob Smith finally admitted his role.) The nomination of Judge Ronnie White, who had bipartisan support in the Senate, languished in committee for almost two and a half years. Judge Helen White waited four years for a hearing; she never got one. This behind-the-scenes scheming proved to be so popular, Republicans were able to block more than sixty of Clinton's nominations. (To no one's surprise, as soon as Bush took office, Hatch abandoned this procedure, allowing nominees to sail through.) The bottom line: While a filibuster requires at least forty-one Senators on board to block a nominee, under Republican leadership, it took only a single dissent.

And boy did they use this technique. The Republicans are claiming that there's some huge moral distinction between preventing a nominee from getting a floor vote and preventing a nominee from getting a committee vote, which was their favorite tactic during the 90s. And Bush's handful of blocked nominees pales in comparison to the roadblocks that Orrin Hatch threw up to Clinton's appointments to the bench:

All this changed in 1996. Rather than openly challenge President Clinton's nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton's appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up. Three appeals-court nominees who did manage to obtain a hearing in Clinton's second term were denied a committee vote, including Allen R. Snyder, a distinguished Washington lawyer, Clinton White House aide, and former Rehnquist law clerk, who drew lavish praise at his hearing -- but never got a committee vote. Some 45 district-court nominees were also denied hearings, and two more were afforded hearings but not a committee vote.

Even votes that did occur were often delayed for months and even years. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. When Majority Leader Trent Lott could no longer preserve the hold, Smith and 13 other Republicans tried to mount a filibuster against the vote, but cloture was voted and Paez easily confirmed. It had been over four years since his nomination.

When his tactics on the Paez and Marsha Berzon nominations (Berzon was filibustered along with Paez, more than two years after her nomination) were challenged, Smith responded with an impassioned floor speech in defense of the judicial filibuster: "Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court ... . That is my responsibility. That is my advice and consent role, and I intend to exercise it."

The public spectacle that occurred the one time that Republicans did wait for a floor vote to kill a nomination confirmed the untenability of their strategy when openly exposed. Ronnie White, an African American judge from Missouri, was nominated for a district judgeship. He was opposed by then-Senator John Ashcroft, who was hunting for a re-election campaign issue; to support Ashcroft, Republicans voted in lockstep against the nomination. Afterward, some of them claimed they hadn't known White was African American. After the embarrassing fight, one Republican staff member acknowledged that "[I]t's just better to kill them in committee."

But when the Republicans took over the White House in 2001 and the Senate in 2003, things sped up. In 2003, Hatch announced that he would abandon the "blue-slip system" he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state; North Carolina's Jesse Helms had used this power to block every one of three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.

This is pure political hypocrisy, plain and simple. And the fact that so many on the right have fallen for it speaks volumes about the degree to which propaganda can exploit public ignorance.