A Filibuster Without Precedent

This op-ed originally ran in the Wall Street Journal on June 10, 2003.

In response to filibusters of federal court nominees Miguel Estrada and Priscilla Owen, Senate Majority Leader Bill Frist is pushing an amendment of Senate rules that would explicitly rule judicial filibusters out of order. The filibustering Senate Democrats argue that Mr. Frist’s proposal represents a radical departure from precedent and a power-grab by the president. In reality, it is the Democrats who have broken brazenly from the past with the current filibusters.

In defending their filibuster, Democrats have cited the Abe Fortas nomination as a precedent that proves Republicans have engaged in judicial filibusters too: So, what was good for the Fortas goose is good for the Estrada/Owen gander. But theirs is a mistaken position.

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On June 26, 1968, President Johnson nominated Justice Fortas to Chief Justice Warren’s seat. Senators from both parties opposed the Fortas nomination for a variety of reasons, some plausible (e.g., that Justice Fortas, who had been a trusted adviser to President Johnson before his nomination, had continued to participate in White House decision making during his tenure on the Court), some not so plausible (e.g., that President Johnson should not be allowed to choose Chief Justice Warren’s successor because the president was a lame duck). Whatever the merits, the criticisms did not prevent a relatively rapid decision on the nomination, which was reported out of the Judiciary Committee (by divided vote) in the middle of September and was opened to floor debate on Sept. 24.

Abe Fortas

A filibuster followed, but not for long. On Oct. 1, the Senate voted on a motion for cloture that would have ended debate on the nomination and allowed an immediate vote on whether to confirm Justice Fortas as chief justice.

The Congressional Record for Oct. 1, 1968, shows that 45 senators voted for cloture, 43 voted against. However, if the senators who did not vote are taken into account, we find that 48 were on record as opposing cloture, 47 as favoring it. Indeed, at least one of the senators who voted for cloture, Republican John Sherman Cooper of Kentucky, said that he would vote against the Fortas nomination if it came to a vote. Another who voted for cloture proposed immediately after the vote that the president withdraw the nomination and submit a name that could be quickly confirmed. This evidence alone shows that of the 47 on record for cloture, at least one, if not more, was actually opposed to the Fortas nomination.

Perhaps that is the reason why Justice Fortas decided to ask that his nomination be withdrawn, and why President Johnson promptly complied on Oct. 4. The point is, at least 49 senators — a majority of the 95 senators whose positions were identified in the Congressional Record — either opposed allowing a confirmation vote or opposed confirmation on the merits. This evidence — which suggests that, if anything, Justice Fortas might have had a majority opposed to his confirmation — casts doubt on the likelihood that a committed plurality of 50 senators (who, with Vice President Humphrey, would have constituted a majority) would have voted for Justice Fortas’s confirmation had the filibuster not prevented it.

By contrast, Mr. Estrada and Ms. Owen would win a confirmation vote today if the Democrats allowed them one. Even assuming that the Fortas filibuster was legitimate, it is not a precedent for Mr. Estrada’s case or for others where a declared majority of senators favors confirmation of the nominee, and where the nominee reacts to the filibuster not by throwing in the towel but by standing his ground.

Besides, four days of debate on a nomination for chief justice is hardly a filibuster, as the closing remarks of then-Sen. Robert P. Griffin, who led the opposition against Fortas, make clear: “When is a filibuster, Mr. President? . . There have been no dilatory quorum calls or other dilatory tactics employed. The speakers who have taken the floor have addressed themselves to the subject before the Senate, and a most interesting and useful discussion has been recorded in the Congressional Record:

“Those who are considering invocation of cloture at this early stage on such a controversial, complex matter should keep in mind that Senate debate last year on the investment tax credit bill lasted 5 weeks; that the Senate debated the Congressional reorganization bill for 6 weeks; and that we spent 3 weeks earlier this year on the crime bill.”

The Fortas episode is different from the current situation for other reasons. The Fortas filibuster lasted a little over a week. It slowed down the deliberative process, but it did not bring it to a halt. Just over three months in all elapsed between the date of nomination and Justice Fortas’s decision to step aside as nominee for chief justice. By comparison, the floor debate on Mr. Estrada’s nomination has been going on for well over three months; and the nomination itself has been pending before the Senate for over two years. Whatever else the Fortas episode stands for, it does not provide senators with precedent for a delay of this duration.

Also, in 1968, a coalition calling itself the “Lawyers’ Committee on Supreme Court Nominations” issued a remarkable letter on the Fortas nomination. In contrast to the present opposition, it was a principled statement signed by the deans of most major law schools, and every living past president of the ABA. It read in part: “If the pending nominations do not win the support of a majority of the Senate, they will fail. If they do win such support, they deserve the Senate’s consent. Nothing would more poorly serve our constitutional system than for the nominations to have earned the approval of the Senate majority, but to be thwarted because the majority is denied a chance to vote.

“Senators have never before employed a filibuster against a Supreme Court nomination. Indeed, prior Supreme Court appointments have seldom been debated more than 8 days. Whatever the merits of the filibuster as a device to defeat disliked legislation, its use to frustrate a judicial appointment creates a dangerous precedent with important implications for the very structure of our Government.”

The Senate Democrats’ are engaged in an unprecedented filibuster. They have changed rules and broken Senate tradition. Never in our history has the filibuster defeated a judicial nominee. Fortas is no precedent: he did not have a majority of the votes. If the filibuster were thought to be available in the past, surely Clarence Thomas’s opponents would have used it. The Constitution is being trampled by partisans desperate to keep constitutionalists off the bench. If we do not fix the rules that the Democrats have broken, the filibuster will take root as a Senate tradition for all time. To vindicate the precedent that filibusters are not applicable to judicial nominees, Mr. Frist’s rules change should be adopted. Not to do so would court systemic collapse.

Mr. Gray, chairman of the Committee for Justice, was chief counsel to President George H.W. Bush.