Maine Politics

From the Piscataqua to the St. John

Monday, May 16, 2005

Mitchell on the Nuclear Option

BDN Op-Ed:
During my six years as majority leader of the Senate, Republicans, then in the minority, often used filibusters to achieve their goals.

I didn’t like the results, but I accepted them because Republicans were acting within the rules; and we were able to work together on many other issues. There were 55 Democratic senators then. We had the power to take the drastic action now being proposed, but we refrained from exercising that power because it was as wrong then as it is now.

Most Americans may not be aware of the complexities of the Senate’s rules, but they do know and understand two fundamental principles: playing by the rules and dealing fairly with others.

The nuclear option violates both. If it’s exercised, I hope that enough modern-day Sen. Smiths, guided by what is best for the nation and the Senate, will vote to stop it.

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Did Republicans use the filibuster to hold up judicial nominations? 

Posted by Bob

5/16/2005 09:21:00 PM



Posted by Mike

5/16/2005 10:41:00 PM


Please cite example. 

Posted by Bob

5/17/2005 09:58:00 PM


Mostly Republicans have used other methods (many of which have since been eliminated) to hold up nominees, but they have also used the filibuster.

The first time I know of was when Republicans filibustered Abe Fortas, Johnson's nominee Chief Justice in 1968.

A more recent example is Richard Paez who Clinton nominated to the 9th Circuit.

Here's what Senator Smith (R-NH) had to say on the Senate floor on March 7, 2000:

"But don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court because I am going to continue to do it at every opportunity I believe a judge should not be on that court. That is my responsibility. That is my advise and consent role, and I intend to exercise it. I don't appreciate being told that somehow I am violating the Constitution of the United States. I swore to uphold that Constitution, and I am doing it now by standing up and saying what I am saying." 

Frist also voted for this filibuster. 

Posted by Mike

5/17/2005 10:55:00 PM


Fortas' nomination as Chief Justice was defeated by a filibuster which included Republicans and Democrats. It is one of only a handful of examples before 2002 of nominees being kept off the bench by filibusters. The Democrats repeated use of filibusters since 2002 is unprecedented.

As for Paez, Mike leaves out that he was eventually confirmed when a number of Republicans voted with Democrats to end the filibuster. 

Posted by George

5/18/2005 08:29:00 AM


Way to try to confuse the issue George. Yeah, I left out a lot of stuff that wasn't at all relevant to Bob's question.

For instance, I left out the fact that in 2003, Hatch did away with the blue slip system by which a senator could block action on a nominee from his or her home state (Jesse Helms blocked every one of three black South Carolina candidates to the appeals court with this tactic). Also, anonymous floor holds were eliminated, and so was the rule requiring one minority-party senator on the Judiciary Committee to agree to a vote on a nominee if any committee member objected.

These methods, not the filibuster, were the favorite way of Republicans to deny nominees an "up-or-down vote" (although they did resort to the filibuster when they had to). 20 of Clinton's appeals court nominees and 45 of his district court nominees were prevented from getting a hearing and even more were prevented from getting a committee vote or delayed for years with these tactics.

With these options eliminated, of course the filibuster has been used more recently (even though the number of judges blocked is dramatically lower than under Clinton). It's the only remaining check on one-party rule.

Now just to clarify for those out there who are based firmly in reality and found all of the above old news and exceedingly obvious: For the past weeks and months, right-wing pundits, especially those on the Fox News Channel, have been claiming that using the judicial filibuster or preventing an "up-or-down" vote on nominees is unprecedented (they're liars). I imagine this is where Bob got the idea. 

Posted by Mike

5/18/2005 11:09:00 AM



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