Filibuster is Appropriate, Necessary, and an Incentive Toward Bipartisanship

It has been repeatedly and wrongly asserted that there has been only one filibuster against a federal judicial nomination, that of Supreme Court nominee Abe Fortas in 1968. In fact, cloture votes have been required to end debate on a number of judicial nominations.

According to the Congressional Research Service, cloture motions have been filed on 14 Court of Appeals nominations since 1980 (Many other attempted filibusters did not result in a cloture vote). As recently as 2000, cloture votes were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit, after Republican opponents repeatedly delayed action on them – for over four years in the case of Paez. Sen. Bob Smith openly declared he was leading a filibuster, and he described Sen. Sessions as a member of his filibuster coalition. Current Senate Majority Leader Bill Frist was among those voting against cloture on the Paez nomination. In 1994, while some Republican senators were engaged in a filibuster against a Clinton administration nominee, Sen. Orrin Hatch called a filibuster “one of the few tools that the minority has to protect itself and those the minority represents.”

It has also been asserted that use of the filibuster is an act of partisanship run amok. In fact, in the current context the opposite is true. Because the Republican Party controls Congress and the White House, and because the White House is unyielding in its refusal to discuss naming more moderate nominees – or even to consult with Democratic senators – the filibuster is effectively the only check left in the federal system. It is particularly appropriate – essential – to wield it to protect Americans’ constitutional rights and legal protections.

Senators’ only other option would be to stand aside while the administration abuses its power in order to fill the federal courts with judges who are eager to reverse decades of precedent and progress on civil rights, privacy and reproductive choice, religious liberty, environmental protection, worker and consumer safety and health and more. That would be a devastating dereliction of senators’ duty to the American people and an abdication of their constitutional advise and consent responsibility. In this context, the filibuster is the one tool that senators have to try to force the administration and the Republican Senate leadership to engage in bipartisan consultation, cooperation, and compromise on judicial nominations.

Estrada has refused to answer basic questions about his legal philosophy and how he would interpret the Constitution as an appellate court judge, and the administration is refusing to release documents that would help senators make a fair evaluation of his fitness for this powerful lifetime position. This is not, as some have suggested, an appropriate resistance to discussing “personal beliefs.” Indeed, Sen. Hatch himself stated in 1997 that for judicial nominees with “limited paper trails,” the Senate should be “more diligent and extensive in its questioning of nominees’ jurisprudential views.” But his current actions threaten to make this virtually impossible. While this would be even more alarming involving a Supreme Court nominee, more than 99 percent of appeals court rulings are never reviewed by the Supreme Court and stand as the final word on the law for millions of Americans.

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