The Filibuster in Theory and Practice

It has been wrongly asserted that use of the filibuster is an act of partisanship run amok by senators who are out to prevent President Bush from naming judges to the federal judiciary. In fact, as Sen. Leahy recented pointed out, the Senate, during the 17 months that he chaired the Senate Judiciary Committee, approved 100 Bush nominees to the federal bench in 2001 and 2002 – a record pace of six confirmations per month. Additional judges have been approved by the Senate this year in spite of significant opposition. Democrats have been extremely careful and restrained in the use of the filibuster. The number of nominees confirmed makes it clear that when the administration does choose to nominate judges considered more moderate, such as recent nominees Edward Prado to the Fifth Circuit and Richard Wesley to the Second Circuit, they are likely to be confirmed.

It has also been wrongly asserted that there has been only one filibuster against a federal judicial nomination, the successful Republican filibuster 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 and cloture votes held on 14 Court of Appeals nominations since 1980; 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. 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. Democrats have also demanded 60 votes for controversial nominees, such as Edward Carnes, who was nominated to the Court of Appeals for the 11th Circuit in 1992. Over the years, many other attempted filibusters did not result in a cloture vote.

The current situation – with one party dominating the White House and Congress in spite of a narrowly divided national electorate – demonstrates why our constitutional framework was designed as a system of checks and balances. The filibuster is now the only tool that Senate Democrats have at their disposal to try to force the administration and the Republican Senate majority to engage in bipartisan consultation, compromise, and cooperation on judicial nominations. Their 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 legal precedent and social justice 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 their constituents and to the American people and an abdication of their constitutional advise and consent responsibility. If a demand for 60 votes is legitimate with respect to legislation that future Congresses can revisit, it is even more appropriate when considering lifetime appointments to powerful positions on the federal judiciary.

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