Hatch/GOP Judicial Strategy Relies on False History

Recent assertions by Sen. Orrin Hatch, Committee for Justice founder C. Boyden Gray, and other Bush administration allies that there was no real filibuster against the Supreme Court nomination of Abe Fortas in 1968 are clearly and demonstrably false.

Republican Senate leaders continue to call the use of the Senate filibuster rules against Bush nominees both unprecedented and unconstitutional, even though the historical record is clear that both parties have conducted filibusters against judicial nominees over the decades. (Indeed, both Sen. Hatch and C. Boyden Gray have previously acknowledged the right of senators to conduct filibusters against judicial nominees.)¹ According to the Congressional Research Service, cloture motions were filed and cloture votes held on 14 appeals court nominations from 1980 to 2000. 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. 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.

Until recent days, even Sen. Hatch had acknowledged that there had been a filibuster against the Supreme Court nomination of Abe Fortas. But now, remarkably, he and his allies are trying to create a new historical record out of whole cloth so they can assert, wrongly, that no judges have been blocked by filibusters. Unfortunately for them, the facts are well documented.

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1. Article I, Section 5 of the Constitution gives each House of Congress the authority to set its own rules, and the Senate has always required more than a simple majority to cut off debate, in keeping with its deliberative role. On May 14, 2003, 58 law professors signed a letter to Sens. Frist and Daschle confirming the constitutionality of the Senate’s use of the filibuster with respect to both legislation and judicial nominations. Moreover, in 1994 Hatch said the filibuster “is one of the few tools the minority has to protect itself and those the minority represents.” In 2001, Gray said on John McLaughlin’s “One on One” program, “If they want to filibuster, mount a filibuster for an appellate judge, I think that’s appropriate, if they want to do it. It normally is not done. But if that’s what the Democrats want to do, I think they’re entitled to do it under the rules of the Senate.”