The Senate and Filibustering

So it's come to this it seems.

Fairly soon, there will be some kind of showdown in the Senate over the use of filibusters as they pertain to blocking President Bush's judicial nominees.

Is this a big deal? Yes, it's a huge deal. First, a little history.

A filibuster is a rule in the Senate that's been in place since that body was first created in the 1780's. It's essentially an obstructionist tool that keeps some item from reaching a vote - it can be long speeches, or procedural motions - anything that keeps an item from reaching the floor for an "up or down" vote.

The Senate, if anything, is proud of its traditions, and filibusters are about as traditional as you can get. In fact, there weren't any rules to somewhat limit the power of a filibuster for over 120 years until rules were passed in 1917 that provided for "cloture", or a vote to end debate with a 2/3 vote.

So back to filibusters. Anyone can basically go on about anything during a speech for filibuster purposes. Senator Huey Long talked about recipes; Strom Thurmond, to block civil rights legislation, went on for 24 hours straight. Both parties have done it, and both will continue doing it. But maybe not for judicial nominees.

The Republicans in the Senate claim that the body is skirting its constitutional duty by not following Article II, Section 2 of the Constitution : "{The President} ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:...". That's the line the Republicans keep going back to. And by not moving forward on a final vote, the Democrats are blocking a two hundred-year plus tradition of allowing votes to occur.

The Democrats, on the other hand, claim that there is a long history of the filibuster, that the Republicans have used it many times, including to block judicial nominations, and that to change the rules mid-stream would be unwise and unfair.

So some analysis -

1) Have the Republicans used the filibuster on judicial nominations in the past?

Yes, in fact they did it to a potential Supreme Court Chief Justice in 1968- when Earl Warren indicated that he would be retiring, Pres. Johnson nominated Abe Fortas. According to all the sources I've ready, Johnson likely had the votes in the Senate to get Fortas through, a filibuster was initiated by the Republicans after it was revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course. Probably a good reason to do so, but yes, it has happened (and there are other times Republicans have).

2) What's the comparison between Bush Jr. and other modern presidents in getting his judicial nominations through?

Here's a great chart showing the last 50 years or so - http://dalythoughts.com/index.php?p=2983

Summarized-

President Confirmation Percentage
Truman 81.8%
Eisenhower 90.2%
Kennedy/Johnson 89.7%
Nixon/Ford 89.1%
Carter 91.8%
Reagan 81.3%
G.H.W. Bush 77.8%
Clinton 61.3%
G.W. Bush 52.2%


Bush Jr. isn't doing too hot. And I quote from the website : "In total, President Clinton nominated 90 people to be Circuit Court justices during the four Congresses during his term. 66 were eventually confirmed. The eventual confirmation rate for his nominees was 73%. He had 13 nominees who were returned but eventually confirmed; the subsequent Congress confirmed 12 of those. Of the 20 returns that Clinton had during his first three Congresses (where he would be in term for a subsequent Congress), he renominated 16 (80%) of them. Over 80% of them were eventually confirmed, with a full three-quarter confirmed in the very next Congress.

In the 107th Congress, President Bush nominated 31 new people to be Circuit Court justices. 19 have eventually been confirmed, for an eventual confirmation rate of 61.2%, compared to Clinton’s 100% eventual confirmation rate for his first Congress’ nominations. Only two of President Bush’s renominations were confirmed by the subsequent Congress– 15.4%.

In aggregate, President Bush has nominated, for the first time, 52 distinct individuals to be Circuit Court justices. 34 have been confirmed, for an aggregate eventual confirmation rate of 65%, 8% lower than President Clinton’s despite the fact that three quarters of Clinton’s term had the Senate controlled by the Republicans."

Here's another good site with the same info - http://www.professorbainbridge.com/2005/04/obstructionism.html

What does all these numbers mean? Bush has had fewer judges confirmed to the United States Circuit Courts, the Courts right below the Supreme Court. Clinton, historically, is low too, but Bush Jr. has the lowest success rate (depending on your point of view) of any US president.

So what's going on here? Basically, the Democrats are trying to block a number of judges they think are too right wing. The Republicans are tired of it, as they've had the fewest number of judges confirmed to Circuit Court than any other president. They've decided to go nuclear. Is this a good idea? Not really, as it 1) totally changes the rules midstream and 2) doesn't do the Republicans any good when there's a Democratic President.

We'll know shortly if we all REALLY DO need to move to Canada soon.