Considering the long history of senators from both parties making use of the filibuster, the right-wing’s sudden concerns over the maneuver’s constitutionality ring hollow at best.
E.J. Dionne Jr. wrote in The Washington Post on May 9, 2003, “ Republicans have been happy to make this claim on nominations when Democrats were in the White House. They famously used a filibuster to kill Lyndon Johnson’s nomination of Abe Fortas as chief justice in 1968. They had no qualms about using the filibuster to kill President Clinton’s nomination of Henry Foster as surgeon general in 1995. Sam Brown, a leader of the movement against the Vietnam War, saw his ambassador-level nomination to head the American delegation to the Conference on Security and Cooperation in Europe blocked by a filibuster in 1994. And filibusters aside, Republicans certainly didn’t defer to all of Clinton’s judicial nominations.”
The New York Times pointed out on May 11, 2003: “And just three years ago, Republicans tried to use a filibuster to block Richard Paez, a Clinton nominee who took four years to be confirmed to the United States Court of Appeals for the Ninth Circuit. Senator Frist, who now questions the constitutionality of the filibuster, was one of only 14 senators to vote in favor of a filibuster at the time.”
An editorial in the Stanford Daily on May, 16, 2003 put it this way, “Although frustrating to those who claim it slows efficiency in our government, filibustering is a part of the checks and balances system that militates against power being concentrated in one part, or one person, in the government. Disputes concerning judicial nominations stretch back to Congress’ rejection of John Rutledge, nominated by George Washington, for chief justice of the United States. The constitutional system of checks and balances that permits filibustering has benefited both parties in past decades and Bush’s attempts to remove this check would only serve a short-term benefit for the Republican party.”