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Charles Krauthammer today in the Washington Post declares that in the past two centuries Abe Fortas was the only filibuster of a judicial nominee, and then going to the Frist defense, said it's not the same because Fortas was being elevated, not appointed to the court in the first place. Mr. Krauthammer, perhaps you need a refresher course in recent Senate history.

Just last Sunday on Face the Nation, Senator Chuck Hagel spoke of the 62 Clinton nominees that were held up by the Republican Senate. Of those 62, the vast majority were held up in committee or not even given hearings, a huge amount of disrespect for a president. Now, of course, the GOP leaders all believe in courtesy to the president's choices.


Moving along, two Clinton nominees were filibustered. In the case of Richard Paez, the Senate voted cloture and he was approved. Marsha Berzon was also filibustered by Republicans. In fact, former Senator Bob Smith (R-NH), who served in the Senate and was one of the Republicans who filibustered those justices, said, "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....That is my responsibility. That is my advice and consent role, and I intend to exercise it."

A Republican senator, a mere five years ago, uttered the words that Democrats are being criticized for today. A Republican senator, denying the filibuster violated the Constitution, but now Republicans believe that the filibuster is unconstitutional. One of the people who joined with Mr. Smith in this filibuster? Why, none other than current Senate Majority Leader Bill Frist and his Whip, Mitch McConnell. Gentlemen, would you please explain to me how you decided it was constitutional in 2000 to filibuster judges but it isn't now? Might it be that the President is a, dare I say it, Republican, now, and so it's unconstitutional to hold up the judges that a Republican nominates, but it's perfectly constitutional to hold up the judges a Democrat nominates?

I could go on about the hypocrisy, but this is nothing more than switched roles. If cloture was acceptable by the same Senate leaders for Clinton's nominees, than by God, it ought to be good enough for Bush's. Having your party in the White House doesn't mean you can just toss out established rules and bull everything through that you want. Oh, yeah, filibusters wouldn't even be necessary if you hadn't stripped away the Senate's long established courtesy of allowing "blue slips" by home-state Senators of nominees, or allowing anonymous floor holds, other tactics that Republicans used against those 62 Clinton nominees, but of course, denied Democrats once Bush took office.

On Judicial nominees, according to this Senate document, cloture was invoked on judicial nominees from 1967-1992 five times, and failed three times. From 1993-2002, cloture was invoked six times and failed three times. It goes to say in that latter time period that filibusters most likely were threatened by Republicans, since they controlled the Senate for the vast majority of that time, and the minority Democrats would hardly filibuster Clinton's nominees. I'll attest that what I just said may seem a little weak, so feel free to find more solid evidence beyond the two nominees I found. For cloture to have been invoked, however, filibusters had to be an issue in those nominations, period, meaning that judicial filibusters, threatened or otherwise, are not a new issue, and are part of Senate history.

Without precedent, Mr. Krauthammer? Hardly.

Originally posted to The Dreaming Tree on Fri May 13, 2005 at 01:39 PM PDT.

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