Bust Judicial Filibusters

The Senate moved closer this week to a long-awaited showdown over President Bush’s judicial nominees—10 of whom Democrats blocked starting in 2003 by using the parliamentary device known as the filibuster.

As Republican leaders have moved closer to restoring 214 years of Senate tradition of giving judicial nominees an up-or-down vote, Democrats have launched an aggressive defense of their unprecedented use of the filibuster that is based on mythology, not fact.

With public discourse focused intently on judicial filibusters, it is vital to distinguish reality from the Democratic spin. The left must not be able to reshape the debate by presenting falsehoods or distorting the truth.

Myth No. 1: Democrats have confirmed 205 of President Bush’s judges, and blocked just a handful.

Reality: When it comes to the powerful appellate courts—the locus of the Senate’s confirmation battles—the story is different. During Bush’s first term, he nominated 52 qualified men and women to the appeals courts. Of these, 35 were confirmed, 17 were not. That is the lowest appellate confirmation rate—67%—in modern times, according to American Enterprise Institute scholar John Lott, Jr.

Since the inauguration of the Democratic filibuster strategy in March 2003, the obstruction has been especially marked. Of 34 appellate nominees in 2003 and 2004, Democrats filibustered 10 (almost one-third), denying them up-or-down votes, and blocked an additional six in the Judiciary Committee, using, for example, a procedure known as blue-slipping, which allows home-state senators to object.

Myth No. 2: The filibusters are fair recompense for Republican treatment of President Bill Clinton’s nominees.

Reality: Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods of time and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McCree Lewis, Jorge Rangel, Enrique Moreno, James Beaty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.

Of the nominees left dangling from Clinton’s two terms, most did not get through the Judiciary Committee due to a specific cause: late nomination, problems with home-state senators, incomplete paperwork, or they were impeachable, meaning they had behavioral issues in their pasts that rendered them unacceptable. In many of these latter cases, the Clinton White House privately agreed with the decision not to move forward. The confirmation slowdown under Clinton occurred mainly during the last year of his second term, a tradition that goes back many years and has been employed by both parties.

Nonetheless, Clinton was able to have 377 of his nominees confirmed—five short of the all-time record. He lost one floor vote for a nominee to the district court. And when the Senate adjourned for the last time under his presidency, there were only 67 vacancies and only 41 nominations expired without action. Overall, that is a good record.

During President George H.W. Bush’s single term, Democrats were equally if not more aggressive with such committee procedures. Outstanding appellate court nominees such as Terry Boyle from North Carolina for the 4th Circuit, Frederico Moreno from Florida for the 11th Circuit, Lillian Bevier from Virginia for the 4th Circuit, and John Roberts from Maryland for the D.C. Circuit did not get confirmed. In all, 54 of our nominees did not get confirmed at the end of the 102nd Congress, and we were left with 97 vacancies on the federal bench.

Myth No. 3: Filibusters against judicial nominees have been employed numerous times in the past.

Reality: By definition, a filibuster occurs when a vote of cloture fails, not when it succeeds and a nomination proceeds to an up-or-down vote.

In all but one case, every judicial nomination subjected to cloture has gone on to confirmation. The “filibuster” of Abe Fortas, nominated to be chief justice in 1968, was just a move to extend the floor debate over Fortas’ ethics in order to defeat him by an up-or-down vote, not to permanently block him. Fortas was on the floor for only four legislative days and did not have majority support, so the nomination was withdrawn. Consider the words of Sen. Robert Griffin (R.-Mich.), leader of the anti-Fortas opposition:  “[T]hus far, there have been only four days of Senate debate on this very important, historic issue. … [A] filibuster, by any ordinary definition, is not now in progress.” Griffin added:  “An examination of the Congressional Record … clearly reveals that the will of the majority was not frustrated. … On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.”

The three other occasions of failed cloture since 1968 have all been followed by successful cloture and confirmation. Significantly, there was no attempt to filibuster Justice Clarence Thomas’ nomination to the Supreme Court, though the White House never had 60 votes for confirmation. So, to be clear, the use of the filibuster to kill judicial nominees with majority Senate support is absolutely unprecedented. Its history is two years old. As liberal constitutional scholar Mark Tushnet has stated: “The Democrats’ filibuster is … a repudiation of a settled pre-constitutional understanding.”

Democratic claims that any delay is a filibuster, or that there has been a filibuster even when cloture occurs and a nominee is confirmed—as in the two oft-cited examples of Clinton nominees Richard Paez and Marcia Berzon—is nothing short of Orwellian. They are saying that invoking cloture is precedent for not invoking cloture, that confirming nominees is precedent for not confirming nominees.

Myth No. 4: Changing Senate precedent on judicial filibusters by majority vote would be a radical move.

Reality: If Republicans do decide to reform judicial filibusters, they can look to Sen. Robert Byrd (D.-W.Va.) for precedent. According to a Harvard Law Review article by Martin B. Gold and Dimple Gupta, Byrd led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987—including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents. Ironically, the occasion in 1980 involved executive branch nominations.

Judicial filibusters may violate Senate tradition and precedent, but overruling dilatory abuses of procedure by majority vote certainly does not. Democrats should bear this in mind as they reconsider their radical filibusters.