Bench Memos

NRO’s home for judicial news and analysis.

The Party of Pinocchio


In the last 24 hours, Sens. Richard Durbin (D, IL) Dianne Feinstein (D, CA) and Byron Dorgan (D, ND) have continued to spin the theory that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered.

This is duplicitous. Two things are important when discussing filibusters – when and why one occurs. A filibuster happens when one or both of the means for limiting debate (unanimous consent or cloture) fail, not when they succeed. And temporary filibusters that do not abolish majority rule altogether can have a legitimate purpose (bargaining, delaying for more debate, etc.). Permanent filibusters intended to defeat a nominee who has majority Senate support are illegitimate.

Consider the words of moderate columnist Stuart Taylor:

“It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as “filibusters” even genuine debates and short-term stalls that ended in cloture votes and confirmation.

“The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

“And even the 1968 filibuster of then-Justice Fortas’s nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas’s request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.”

Successful cloture votes are not filibusters. Generic delays or blockages are not filibusters. Blue slips and holds are not filibusters. For Durbin, Dorgan, and Feinstein to suggest otherwise is simply deceptive.


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