I know you will be shocked (shocked!) to learn that the Democrats in the Senate and the mainstream media have not been telling the truth about the filibuster of judicial nominees. So, here it is.
There is no long or honored tradition of using the filibuster in the Senate, and certainly not to block judicial nominees. In fact, the filibuster has almost always been used as an obstructionist tactic to block legislation that otherwise enjoys popular support . Recall Strom Thurmond's record filibuster of a 1957 civil rights bill.
The key difference here is that Thurmond actually took to the floor and spoke at length, without yielding, to block any other business from coming before the Senate. That is a "real" filibuster. Unlike today's filibuster in which all a Senator must do is signal his intent to filibuster (the so-called "gentleman's filibuster"). This is kind of like the batter signaling his "intent" to hit a home run and then just running around the bases and tagging home. That's ridiculous. The other team doesn't just accept the batter's intent. They make him go through the hard work of actually hitting the ball over the fence.
The first filibuster of a judicial nominee was in 1968 when Abe Fortas' nomination as Chief Justice of the Supreme Court was filibustered. In addition to his nomination being opposed on ideological grounds, Fortas had serious ethical questions surrounding him as well. Opponents of Fortas' nomination wanted time to air these charges, so they filibustered. The two things to bear in mind about this filibuster are: (1) Fortas' opponents never intended to prevent his nomination from coming to the floor for an up-or-down vote; and (2) Fortas did not have the support of a majority of the Senate. In fact, the cloture vote (a motion to end debate, i.e., end the filibuster) garnered just 45 votes, far short of the required 60. Lyndon Johnson withdrew the nomination.
The filibuster did not raise its ugly head again until the Clinton administration. In 1996 Bill Clinton nominated a district-court judge named Richard Paez to the Ninth Circuit Court of Appeals (the same circuit that told us that we had to remove the words "under God" from the Pledge of Allegiance). In 1998 he nominated a San Francisco lawyer named Marsha Berzon to the same court.
Republicans, who were the majority at the time (just as they are now), wanted to block these nominations. The nominations were held up in committee until 1999 when Senate Democrats and President Clinton complained about the stalled nominations. Sens. Orrin Hatch and Arlen Specter then sided with Senate Democrats on the Judiciary Committee to approve the nominations and send them to a floor vote.
Now, here is where today's Democrats are caught in a lie. Paez and Berzon were never filibustered (contrary to the claims of Sen. Charles Schumer, among others). New Hampshire Republican Bob Smith tried to filibuster the nominations but his motions were defeated (85-14 in the case of Paez, and 86-13 for Berzon). Both nominees were subsequently approved.
Fast forward to 2003. The Democrats, still the minority, decided it was their prerogative to veto the President's judicial nominees. So, they began to use the filibuster. The Democrats have blocked 10 nominees from receiving up-or-down votes.
There are, I believe, three key differences between the 1968 Fortas filibuster, the 1999 non-filibusters of Paez and Berzon, and the 2003 filibuster of Bush's 10 judicial nominees.
First, in the case of the Fortas filibuster, the intent was not to block Fortas' nomination from ever reaching the floor. The intent was to allow for more time to study the nomination so that more information about Fortas could be brought to light prior to a floor vote. This is patently not the case with Bush's nominees. Witness this exchange between Senate Minority Leader Harry Reid and Sen. Robert Bennett of Utah over the Priscilla Owen nomination:
Bennett: "I ask unanimous consent that there be an additional six hours for debate on the Owen nomination."
Reid: "I object."
Bennett: "I modify the request to ten additional hours."
Presiding officer of the Senate asks if there are any objections.
Reid: "Yes. There are more productive things that could be done during those ten hours."
Bennett: "I ask if any number of hours would be sufficient for the Senator from Nevada."
Reid: "There is not a number in the universe that would be sufficient."
In other words, Senate Democrats fully intended to block this nomination from ever receiving an up-or-down vote. This wasn't about the advise and consent role. It was about obstructionism and denying the President his choices for the federal bench, pure and simple.
Second, the Democrats are the minority party. While the Constitution and Senate rules respect the minority, they clearly do not give them the power to block nominees from an up-or-down vote. Respect for the minority should not result in tyranny by the minority (something which is occurring more and more in our society). One of the perks of winning elections is that the winners (i.e., the Republicans) get to try and enact their policies and nominate people they believe will help them do that.
Third, the filibustered nominees enjoy majority support. In other words, were their nominations ever sent to the floor, they would be confirmed. This is what is most galling about this whole episode and stands in stark contrast to the Fortas "precedent". If a Senator objects to a nominee then he should vote not to confirm that nominee. If he wants to defeat an nominee, then he should convince 49 of his colleagues to do likewise. To do otherwise is cowardly.
Oh, and the fabulous compromise hammered out by the "McCain Seven"? Yeah, that lasted a long time. Democrats are at it again. Now they are filibustering John Bolton's nomination to be Ambassador to the U.N. Color me shocked!