History of the “filibuster” for Supreme Court nominees.

This will be short.

[Source: The Last Time a Supreme Court Nominee Was Filibustered (Yes, It’s Happened Before), by Barbara Maranzani;

What is a “filibuster” anyway?
[From the Maranzani article] (The filibuster is a) procedural method primarily used by the minority party to delay or block legislation (or in this case, a nomination). The filibuster has a bit of an unusual history. In its early years, both chambers of Congress limited stalling tactics via a rule known as the “Previous Question Motion,” which allowed for a simple majority vote to end debate. The House of Representatives still has this rule (so you’ll never see a filibuster there), but thanks to a bit of odd advice from Vice President (and Alexander Hamilton killer) Aaron Burr to clean up its rule book, the Senate did away with the Previous Question motion in 1806…and inadvertently opened the door to a whole lot of talking.

No one much liked all the talking so the filibuster was rarely invoked until the later portions of the 19th century. Who used it, asked you? Well, answer I, it was employed by southern state DEMOCRATS to block any legislation meant to improve the lot of emancipated black Americans.

Has the filibuster ever been used to block a Supreme Court nomination, ask you? The answer is “yes” and “no,” answer I. The filibuster has never been used to block the appointment of an associate justice, as was just done for the first time by the Democrat Party in the 238 year history of the Senate. (The filibuster was used to thwart the appointment of sitting Associate Justice Abe Fortis to Chief Justice in 1965.)

More likely you have heard the liberal media spouting off about “cloture.” It’s an odd word that has an equally odd history (footnote).

Even highly controversial nominations (Judge Bork, Judge Clarence Thomas, and Judge Samuel Allito – notice any pattern here) did not provoke filibusters. So the notion that the current “filibuster” of Judge Gorsuch by the Democrats was business as usual is nonsense. From an historical perspective virtually nothing has changed. Similarly the notion that the subsequent “nuclear option” by Republicans was a devastating change to Senate debate is also nonsense. A total of 112 Justices have served on the Supreme Court and you just witnessed the first associate justice nomination to be filibustered.

Roy Filly

Footnote: [From the Maranzani article]

“Cloture.” What is that?

... As soon as senators realized the full power of the filibuster, other senators were trying to curtail its use. But it wasn’t until 1917 that the cloture rule was adopted, allowing for an end to debate via a two-thirds majority vote. Reaching that threshold, however, proved difficult, leading to another rule tweak in 1975 that lowered the requirement to a three-fifths vote, or 60 people in the 100-body Senate.

Cloture votes for Supreme Court nominations are almost as rare as filibusters, with just four other instances in modern times. Abe Fortas’ failed vote in 1968 was the first, followed by two surrounding William H. Rehnquist’s appointment as associate justice and then chief justice (he was eventually confirmed by a full vote in both instances) and Samuel Alito, whose 2006 nomination was briefly stalled before a successful cloture vote ended debate. He too was finally confirmed when his nomination was put to a yes-no vote.


About Roy Filly

Please read my first blog in which I describe myself and my goals.
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One Response to History of the “filibuster” for Supreme Court nominees.

  1. Anne Malcolm says:

    Well, the Senate rule is now gone, thanks to Reid and Schumer. So we’re back to the way it was. Now, if only we could have senators selected by the state legislators.

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