The Corner

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Boyden Gray On Fortas


The chairman of the Committee for Justice writes, with regard to the Ornstein column I mentioned earlier: “Never before in history had there been a true filibuster (i.e. permanent, minority blockage) of a judicial nominee until 2003. A single failed cloture vote, for procedural reasons or to extend debate, does not a filibuster make. Historically, failed cloture votes on judicial nominations have always been followed by successful cloture votes and majority confirmation votes. The one exception is Abe Fortas, whose nomination was pulled after a single cloture vote – four days in – failed with 45 votes, indicating Fortas lacked majority support. The cloture vote functioned as a test vote to avoid subjecting Fortas (and President Johnson) to humiliating final rejection. Fortas’ bipartisan opponents signaled willingness to proceed to an up or down floor vote if necessary.

“To repeat: the current Democrat judicial filibusters are the first permanent denial of cloture to nominees with majority Senate support. They are unprecedented.

“Ornstein quotes Sen. Robert Griffin from the time, but somehow misses his most salient words: ‘[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.’

“Regardless, if Ornstein – and Senate Democrats – wish the Fortas case to be their standard, fine: I’m sure on contentious nominees the majority would be glad to allow one cloture vote and four days of debate.”