Skip to content

The ‘Nuclear Option’ as A Return to Tradition? Hogwash.

Sorry, but I have to address judicial confirmations one more time. I wasn’t planning on doing this, but the constant drumbeat of propaganda forced my hand. [IMGCAP(1)]

There is so much misinformation floating around that I thought it was important to clarify the historical record. Of course, by the time this column appears, enough institutionalists in the Senate might reach the edge of the abyss and think better of it. But even if there is a deal to head off the “nuclear option” to end judicial filibusters, some of these myths need to be confronted directly.

The myths have been repeated ad nauseam by Republican Senators on television, in op-eds, at press conferences and on the floor. They have been faithfully repeated by bloggers and columnists. They were pulled together nicely and concisely in The Washington Post column by my friend Charles Krauthammer last Friday.

Krauthammer — like Senate Majority Leader Bill Frist (R-Tenn.), Sens. Mitch McConnell (R-Ky.), Orrin Hatch (R-Utah) and their compadres — suggests that filibusters against judicial nominees are a fraud. He dismisses the filibuster against Abe Fortas as not a real filibuster, since he didn’t have the votes anyhow. He says, “two hundred years of tradition have been radically and unilaterally changed by the minority” Democrats, because they have lost the last two elections and fear losing the only branch they control, the courts, on which their loyalists have legislated “by judicial fiat everything from abortion to gay marriage to religion in the public square.”

He says, further, that “one of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees.” He calls the Democrats’ actions “historically unprecedented” and “radical,” saying they have “unilaterally shattered one of the longest-running traditions in parliamentary history.”

This view was reinforced by Frist’s op-ed in Monday’s USA Today, in which he wrote about the 214-year-old tradition of having up-or-down votes in the Senate on judicial nominations. He adds that, since President Bill Clinton’s judicial nominees only required 51 votes, “why should George W. Bush’s be treated differently?”

Where to begin? Let’s deal quickly with Fortas. First, apply Logic 101: If Fortas did not have the votes, why filibuster? If it was not a filibuster, as many Republican Senators have contended, explain the official Senate Web site, in its section on history, having as its headline “October 1, 1968: Filibuster Derails Supreme Court Appointee.” Must be the phenomenon Ronald Reagan talked about with his White House, that sometimes the right hand doesn’t know what the far-right hand is doing.

Now let’s turn to the twin notions that through 214 years of American history there has been a near-ironclad tradition of judicial nominees getting up-or-down votes on the Senate floor, undergirded by the great custom of the Senate that renders filibusters of judicial nominees taboo.

On the latter point, I have searched through a whole lot of history of the Senate, from George Haynes’ classic volumes to memoirs and other literature. I have yet to read anything about some long-standing tradition, custom or unwritten rule against filibustering judicial nominees.

It is true that for more than 30 years after the Senate got its first cloture rule in 1917, there was no cloture provision on nominations. But remember that cloture is the way to end, not to extend, debate. Before 1917, for nominations or legislation, there was no way to end debate if one or more Senators held the floor. So the lack of a specific cloture provision for nominations did not mean there was no provision for a filibuster; quite the contrary. It meant there was no way for any supermajority of Senators, whether two-thirds of those present and voting or 60 Senators, to stop talking and start voting.

Now let us take up the assertion that we have had a two-century-plus tradition of giving presidents up-or-down votes on their judicial nominations. What are these people smoking? For more than 200 years, hundreds of judicial nominees at all levels had their nominations deep-sixed, buried, killed or asphyxiated by the Senate, either by one individual, a committee or a small group of Senators, before the nominations ever got anywhere near the floor. To be sure, most were not filibustered in the “Mr. Smith” sense, or in the modern and direct version. These judicial nominees were stabbed in the back, not in the chest.

Consider the history of Supreme Court nominations — the most visible and prized, of course, and the ones you’d think would have clearly fit Krauthammer’s notion.

Of the 154 nominations to the Supreme Court between 1789 and 2002, 34 were not confirmed. Of these, 11 were rejected by a vote of the full Senate. The remaining 23 were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough. At least seven nominations were killed because of objections by home-state Senators. Five others were reported to the Judiciary Committee (which was created in 1816) and never made it out.

That is the Supreme Court. We don’t have a precise account of nominees to federal appeals courts or district courts, but we do know that there is a longstanding tradition, custom and unwritten rule applying to district court nominees, giving one or two Senators from the home state a veto power that has been exercised countless times. (That unwritten rule, incidentally, was shattered by Hatch, then the Judiciary chairman, when Clinton was president.)

This “blue slip” power was applied less frequently to appeals court nominees, but many in the past were killed far short of a vote on the Senate floor. Why weren’t more of them filibustered? Because it was easy enough to kill most of the controversial ones without resorting to a filibuster.

There is no record I can find of a historical period in which the Senate systematically killed such nominations. Rather, they tended to be done on a case-by-case basis. But that did change in the second Clinton term, when dozens of judicial nominees, including many to appeals courts, were denied hearings, in some cases for four or five years, not on the basis of any charge that they were ideologically extreme or unqualified, but rather because they represented slots on important courts, worth keeping open in case the next president turned out to be a Republican.

If we want to look for a breach in Senate traditions, that is where to start. And the failure to bring more than 60 to the floor for up-or-down votes makes one gape at Frist’s astonishing comment that the standard in the Clinton years was 51 votes. For these 60 would-be judges, it was a one-vote standard — that of the chairman of the Judiciary Committee.

There are longstanding traditions in the Senate regarding judicial nominations. Those traditions call for a vigorous and independent Senate playing its role of advice and consent. They understand that judicial nominations, because they represent lifetime appointments which cannot and should not be easily rescinded, require higher hurdles than simple legislation which can always be amended or repealed. Charles Krauthammer called the nuclear option “restoration.” It’s not even close.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

Recent Stories

Strange things are afoot at the Capitol

Photos of the week ending May 24, 2024

Getting down on the Senate floor — Congressional Hits and Misses

US-China tech race will determine values that shape the future

What’s at stake in Texas runoff elections on Tuesday

Democrats decry ‘very, very harmful’ riders in Legislative Branch bill