Legal Affairs Debate Club – Filibusted? by Erwin Chemerinsky, Alston & Bird Professor of Law at Duke University School of Law

Republicans contend that the filibuster for judicial nominations is illegitimate obstructionism. But this ignores that Republicans, too, have used the filibuster for judicial nominations when they were the minority party. In October 1968, Republican Senator Strom Thurmond led a successful filibuster preventing the confirmation of Abe Fortas as Chief Justice and Homer Thornberry as Associate Justice on the grounds that a lame duck President should not fill Supreme Court vacancies. At the beginning of the Clinton presidency, Republicans successfully filibustered Henry Foster to prevent his serving as Surgeon General.

The Republican claim that the Democrats have used the filibuster in an obstructionist manner is disingenuous. In President Bush’s first term, the Senate confirmed 219 of his judicial nominations, and Democrats blocked 10 judicial nominees by filibustering. While Republicans are unhappy with this, it is among the highest success rates for a president’s judicial nominations — more than 90% — in American history. Republicans want to go further by giving President Bush the unique legacy of 100% success in appointing lower court judges and Supreme Court justices.

In an exercise of raw power, Senate Republicans are attempting to eliminate the filibuster for judicial nominations but without following the rules for changing the Senate’s rules.

[Thanks, SM]