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Senate Democrats have perfected the "art" of preventing the Senate from doing its constitutional duty.

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Filibustering Judges Has Become Democratic Specialty

Senate Democrats have perfected the “art” of preventing the Senate from doing its constitutional duty.

Over the years, both Republican and Democratic senators have voted to filibuster judicial nominees. But while Republicans have done it sparingly, it has become a Democratic specialty.

Since Senate debate on legislation or nominations is ordinarily unlimited, a filibuster occurs when attempts to limit debate fail. A single senator may defeat the informal method of seeking unanimous consent, or 41 senators may defeat the formal method of a motion to invoke cloture.

Either way, a filibuster keeps the Senate debating a question and thus prevents a vote on that question. Cloture votes are always by roll call, which allows us to examine the filibuster record.

Since 1968, the Senate has taken 26 cloture votes on 17 different judicial nominees. In the case of 10 of those nominees, the lone cloture vote passed, and the Senate voted to confirm. In the case of three nominees, the first cloture vote failed, but the Senate eventually confirmed them-demonstrating that those filibusters were not intended to defeat the nominees.

The four other nominees who faced cloture votes were Supreme Court Justice Abe Fortas, Miguel Estrada, Texas Supreme Court Justice Priscilla Owen and Alabama Atty. Gen. Bill Pryor.

Fortas withdrew his 1968 nomination to be Supreme Court Chief Justice after a 45-43 cloture vote. The 43 senators who opposed cloture were evenly bi-partisan and the 45 supporting cloture were not a Senate majority.

Thus every filibuster in the past 45 years designed solely to defeat a judicial nominee who would otherwise be confirmed by a Senate majority is going on right now.

Seven cloture votes have failed on appeals court nominee Estrada, three on appeals court nominee Priscilla Owen, and one on appeals court nominee Bill Pryor. Let’s examine the votes.

Thirty-eight of the 40 current senators who have never voted to filibuster a judicial nominee are Republicans. Thirteen of the 51 current Republicans have voted for at least one filibuster. None has voted against cloture on judicial nominees more than 16% of the time such votes were held, and the average for this group is 9.5% of the time. The average for all Republicans is just 2.8%.

Only two of the current 49 Democrat senators have never supported filibustering a judicial nominee. In fact, 33 Democrats have supported such filibusters at least two-thirds of the time. The average for all Democrats is 64.9%.

In October 1999, Senate Minority Leader Tom Daschle (D.-S.D.) found it "simply baffling that a senator would vote against even voting on a judicial nomination." Daschle has now baffled himself 12 times. In June 1998, Sen. Patrick Leahy (D.-Vt.), the ranking member on the Senate Judiciary Committee, promised to "object and fight against any filibuster on a judge, whether it is somebody I opposed or supported." He has broken that promise 15 times.

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Written By

Thomas L. Jipping, J.D., a former federal appeals court law clerk, is a writer and analyst specializing in the judicial appointment process.

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