The Senate Filibuster

Mr. Gray and the Committee for Justice have repeatedly stated that the filibusters of Miguel Estrada and Priscilla Owen are unprecedented and unconstitutional. These assertions are patently wrong. In fact, Boyden Gray himself, on John McLaughlin’s One on One program in 2001, stated “it was appropriate” for senators to mount a filibuster against an appellate judicial nominee, and that senators were “entitled to do it under the rules of the Senate.”

Article I, Section 5 of the Constitution clearly states that each House of Congress has the authority to make its own rules. The Senate was designed explicitly to be the more deliberative body, where extended debate would be a check on potential abuses by the party in power. For more than 200 years, that deliberative role has been preserved by Senate rules requiring more than a simple majority vote to end debate on legislation and other matters before the Senate. This is especially true when the White House and both houses of Congress are controlled by a single party. The modern-day filibuster is an important tool for encouraging senators to work toward a measure of bipartisan consensus on controversial issues of major importance.

There is also a clear history of bipartisan use of the filibuster with regard to judicial nominations. Senate Republicans successfully filibustered in1968 the nomination of Associate Justice Abe Fortas to be Chief Justice of the United States. Mr. Gray now says, in an incredible and easily refutable revision of history, that it really was not a filibuster that defeated Justice Fortas because Fortas could not command a majority vote. The record, however, is clear that a filibuster prevented the Fortas nomination from coming to a vote, and the nomination was subsequently withdrawn. In 1971, Senate Democrats filibustered the nomination of William Rehnquist to be Associate Justice, and then in 1986 filibustered his nomination to be Chief Justice of the United States. Both filibusters failed.

Between 1980 and 2000, Republicans and Democrats conducted a number a filibusters against judicial nominees. 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.

Furthermore, from 1995-2000, Senate Republicans blocked one-third of President Clinton’s circuit court nominations, nearly all of them without nominees having received even a hearing or a committee vote. That was unfair and unprecedented, but it was not unconstitutional.

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