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Bench Memos

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Was Abe Fortas Defeated by Filibuster?



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Ah, the irony. In Wednesday’s edition of The Hill, Byron York pointed out that several Senate Democrats last week had justified their denial of cloture to U.N. nominee John Bolton on grounds of extending debate to procure more information, but that it was NOT a filibuster. While York is technically right to dismiss this argument–by definition a filibuster occurs when a vote of cloture fails–in the context of judicial confirmations, Committee for Justice has argued there is a difference between a temporary denial of cloture for procedural reasons, to prevent a rush to judgment, present new information, etc., versus the permanent veto wielded by Democrats in the 108th Congress.

In fact, last week’s statements reminded me of former Sen. Robert Griffin’s (R., Mich.) words during the debate over Abe Fortas: “[T]hus far, there have been only four days of Senate debate on this very important, historic issue. . . . [A] filibuster, by any ordinary definition, is not now in progress.” And: “An examination of the Congressional Record … clearly reveals that the will of the majority was not frustrated. . . . On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.”

Next time Democrats cite Abe Fortas as adequate precedent for recent judicial filibusters, just ask them about John Bolton.



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