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Monday, April 25, 2005

Ah, the filibuster

Majority Leader Frist describes the filibuster as "unprecedented." Mr. Sprucewood, who makes an otherwise interesting and convincing argument, claims that such nominations to the Supreme Court have been stopped in the past "without the filibuster (a la Abe Fortas)." Now, I am not one to argue precedent, and I am swayed by Mr. Sprucewood's call to democratic sanity in many ways, however, let's be clear: this is neither "unprecedented" or always done differently in the past:

Via CrooksandLiars, a video clip of CBS News discussing the filibuster of President Johnson's nominee to be Chief Justice of the Supreme Court in 1968: Abe Fortas.

By the way, it's looking increasingly likely that there will be a compromise.

5 Comments:

At 12:00 AM, Blogger Jamal Sprucewood said...

I stand corrected. I should have been clearer in my writing and noted the nuances of the Fortas case, which I will get to below. My language in the comment that Golis refers to is problematic in that it equates the Bork and Fortas cases. They certainly are not.

My original quote, however, also spoke of Robert Bork, who was indeed defeated without use of the filibuster. Golis cut it short in his post. Additionally, I did make clear that there were other avenues through which judicial nominees have been obstructed in the past. "And let's be clear, this applies to both parties but it just so happens that the Dems are using it now. Before the filibuster was the "hold" and other various forms of obsruction that were "below the radar."

Now, for the record, there are very important nuances in the Fortas case that do not correspond to the current circumstances. First and foremost, Fortas was already an associate justice on the Supreme Court. His nomination for Chief Justice was obstructed by a coalition of Republicans and Southern Democrats on the basis of unanswered ethics improprieties (including his role as a LBJ confidant who pressured/lobbied Senators for the President). Second, the filibuster was used for a limited time to allow these questions to be answered. LBJ withdrew the nomination when it became apparent that sticking with Fortas would be problematic. It is questionable that the filibuster would have been used beyond the time needed to have the ethics questions answered. Third, the Fortas case, unlike Bork's, had little if nothing to do with the nominee's ideology. Finally, Fortas resigned from the Supreme Court shortly after the incident in question in 1969.

The current circumstances, and the precedent set during the 1990s, differs a great deal from the Fortas case. First, the case against Fortas was an ethical one and not an ideological one. I don't think that I can overstate this enough. Second, the filibuster has indeed never been used to deny a nominee a seat on a court, whether it be the Supreme Court or a lower court. Fortas was already on the Supreme Court, so the filibuster of 1968 should not be viewed as an attempt to keep him off the court. Third, there is a great difference between obstructing an individual judicial nominee for ethical reasons and holding several nominees for ideological reasons. The former case seems justified, if not absolutely demanded for the integrity of the system, whereas the latter seems to apply an ideological litmus test that smacks of partisan politics. Let me say again, this applies to both parties. My concern, however, as I mentioned in earlier comments, is that the practice only seems to be growing and that it is being applied to the lower courts with increasing frequency. This trend is cause for concern because it undermines the concept of an independent judiciary. It will become increasingly difficult to ask justices to reach decisions in controversial cases when their extremely nuanced and complex arguments could become fodder for the next special interest group's judicial witch hunt, which may very well one day be directed at the justice in question.

I'm not suggesting that justices be completely tone-deaf politically - I doubt that is even possible - but I regard with suspicion actions by the legislative branch which increasingly threaten to advance partisan politics into a field for which it has not only questionable utility but also undermines the integrity of that field. The current filibuster does absolutely nothing to stem this trend. And neither, as Ted Olson noted, does the current hysterical rhetoric on boths sides of the aisle.

But back to the original point. There was a filibuster used against Abe Fortas, but it was not used to deny him a position on the Supreme Court, concerned ethical lapses on his part, and was not intended for long term use. I would argue that the current filibuster is not the same filibuster used against Fortas. In that a filibuster was used, Golis is correct, but it was under different circumstances than today. I, however, erred in referring to both Fortas and Bork when their cases were so different and regret the error. I will shortly be editing the post and excising Abe Fortas from the example.

 
At 12:19 AM, Blogger andrew golis said...

That's fine. And I generally accept the substance of your argument. But I still think it's ridiculous to act like this hasn't been used by Republicans in the past. Frist voted to to filibuster one of Clinton's nominees.

What Republican's continue to point to is that no judge has been successfully filibustered. BUT, Republican's and Democrats have used the filibuster as a threat and a bargaining chip. Both sides have also used every kind of in committee and out of committee delay tactic since the beginning of time. http://democrats.senate.gov/fact2.html

That being said, I'm all for figuring out a way to fix the system. But let's not act like this is some sort of grand "unprecedented" injustice.

 
At 1:16 AM, Blogger Jamal Sprucewood said...

Golis, I don't know why we seem to be talking over each other's heads. I think I've gone out of my way to note that obstruction is not new and that both parties do it. The grand injustice is being done at a higher level than both parties - to the institution. Both parties are equally guilty in this regard. I note the current obstruction as being done by Democrats to note the general trend that has intensified over time. As the Republicans are the party in power, by definition only the Democrats, as the minority party, can engage in obstructing judicial nominees. I think I've made clear that this is not a problem specific to any one party but to both. And the tactics that I've referred to make that clear as well. The "hold" that I refer to is, in fact, a threat to filibuster. I could have also as easily referred specifically to the Republican controlled Senate Judiciary Committee not even holding hearings on some of Clinton's nominees. If you will go back and read my comments, I think you will find that they are geared toward a critique of the trend of obstructing judicial nominees, for which both parties are to blame.

 
At 1:44 AM, Blogger andrew golis said...

word. then we agree! But it is a lot to expect us liberals to stand up for good government when we lose ideologically when no one has before. I'm not saying it shouldn't be done, but it's a lot to ask...

 
At 7:47 AM, Blogger andrew golis said...

sorry for my knee-jerk partisanship on this. it's a good example of where you get caught up in the argument and don't actually read. btw, the Crimson chimed in today on this very issues:
http://www.thecrimson.com/today/article507353.html

 

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