- The Washington Times - Wednesday, May 11, 2005

A contentious point in the fight over President Bush’s filibustered judicial nominees is whether nominations to the federal bench ever have been blocked from confirmation on the Senate floor by a minority.

Republicans say the tactic is “unprecedented,” while Democrats say history is filled with such examples.

In explaining why he would employ the so-called “nuclear option” to end the current Democratic filibusters, Senate Majority Leader Bill Frist of Tennessee told reporters this week he must “restore over 214 years of Senate history and tradition to this body.”

The nuclear option would lower the number of votes needed to end a filibuster over a judicial nomination.

Senate Minority Whip Richard J. Durbin of Illinois, who serves on the Judiciary Committee, disagrees that his party’s filibusters against 10 of Mr. Bush’s nominees are out of the ordinary.

“I hear people say that until these judicial nominees were challenged with extended debate or filibuster, it never happened before,” he said on the Senate floor before submitting a list of previously filibustered nominees.

“This is not new, not novel,” he added, listing 12 nominations between 1881 and 2000.

Republicans say that, according to the Congressional Record, all but one of the nominations ultimately were confirmed. The one successfully blocked nominee was Supreme Court Justice Abe Fortas, who was nominated to be chief justice by President Johnson in 1968.

Sen. Orrin G. Hatch, Utah Republican and a member of the Judiciary Committee, stood on the Senate floor this week to discuss what he called “ridiculous judicial filibuster defenses.”

The first issue he addressed was the argument that the judicial filibusters are part of Senate tradition and held up a chart of some of the nominees listed by Mr. Durbin.

“The Senate confirmed each of these nominations,” the former chairman of the Judiciary Committee said. “As ridiculous as it sounds, filibuster proponents claim … that confirming these past nominations justifies refusing to confirm nominations today.”

Stephen G. Breyer, for instance, was nominated to a federal appeals court in November 1980 by President Carter, who had just lost re-election. In December, a bipartisan group of 68 senators voted for “cloture,” the parliamentary procedure that requires 60 votes to end debate and move to a final confirmation vote. He was confirmed later that day. He was elevated to the Supreme Court by President Clinton in 1994.

Democrats argue that merely invoking cloture represents a filibuster because it means that someone is trying to extend debate in order to delay confirmation. A failed filibuster is still a filibuster, they argue.

Not so, say Republicans, who argue a cloture vote also can signify exactly what it’s designed to end: an extension of debate so that arguments about a nominee can be made more thoroughly.

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