Wampum

David Greenberg, writing in the Los Angeles Times, notes that the claim that the use of filibusters with regard to judicial nominees is unprecedented is false:

To justify banning Senate filibusters in judicial nomination debates, Republicans are claiming support from history. Until now, say Republicans such as Sen. John Kyl and former Sen. Bob Dole, no one has used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are forced to change written ones.

But the charge that filibustering judicial appointments is unprecedented is false.

Greenberg points to the filibuster of Supreme Court nominee Abe Fortas:

[W]hen Chief Justice Earl Warren decided to retire, and President Lyndon B. Johnson tapped Associate Justice Abe Fortas, his old friend and advisor, to replace him. Possessed of a distinguished career, Fortas was amply qualified for the post. But Johnson, having forsworn reelection, was a lame duck, and Republicans saw no reason to confirm Fortas before the November election.

The Senate Judiciary Committee ultimately endorsed Fortas. But a band of Republicans and Southern Democrats took their fight to the Senate floor. On Sept. 25, 1968, they began a filibuster, beating back a motion to end debate, with Republican leader Everett Dirksen, once a Fortas supporter, switching sides to oppose cloture. Bested in the Senate, Johnson withdrew the nomination on Oct. 2.

Some conservative bloggers have attempted to draw distinctions between the filibuster of Fortas and the current use of the filibuster to block a few of President Bush’s nominees. Law professor Stephen Bainbridge sums up the distinctions:

Greenberg's analysis has more holes in it than a kitchen sieve.

Patterico and Pejman both give it through fiskings. Based on their posts and my own study of the Fortas incident, several key problems with Greenberg's analysis emerge:

1. Unlike the current Democrat obstructionism, which is wholly partisan in nature, the filibuster of Fortas had bipartisan support.

2. The current nominees have the support of a majority of senators and are being blocked by a partisan minority. In contrast, Fortas might well have lost if it had come to a final vote.

3. Fortas had been nominated to be the chief judge of the highest court in the land. In contrast, the targets of the Democrat obstructionism will be mere junior intermediate appeals court judges.

4. There were substantial ethical charges against Fortas. Most notably, as Patterico observes, Greenberg ignores the shenanigans between Fortas and convicted stock manipulator Lous Wolfson.

5. Fortas had been nominated by a lame duck (LBJ) about to be replaced by a newly elected president of a different party (Nixon).

The Fortas parallel is thus exposed as wholly disingenuous.

When faced with precedent that undercuts the result a lawyer seeks, he or she will attempt to distinguish those cases on either the facts or the law. Professor Bainbridge has sought to distinguish the Fortas filibuster from the current ones by pointing out factual differences in the situations.

In order to effectively distinguish prior cases, it is not enough to merely show that some difference exists. The fact that a contract in the prior case was signed on a Tuesday and the one in the instant cases was signed on a Thursday is, except in extraordinary circumstances, a distinction without a difference. The key is to distinguishing “bad” precedent is show that the factual distinctions should change the legal analysis.

Warren Richey of the Christian Science Monitor describes the Republican “Constitutional Option” analysis as follows:

Republicans have put forth the analysis that filibusters of judicial nominees are unconstitutional. That is why they seek to call what has commonly been called the “nuclear option” the “constitutional option.”

Overall, Republicans and their supporters say there is a constitutional duty to provide the Senate's advice and/or consent through an up-or-down majority vote on each presidential nominee. To use a filibuster to block a majority vote is to rewrite the Constitution and undermine the fundamental concept of majority rule, they say.

Senator Orrin Hatch, writing in National Review, agrees that the Constitution requires an up or down vote on judicial nominees:

Democrats' new filibusters abandons this tradition and is unfair to senators who must provide the "advice and consent" the Constitution requires of them through a final up or down vote.

If the Constitution requires an up or down vote on judicial nominees, the distinctions between the Fortas filibuster and the current crop of filibusters are distinctions without differences.

Professor Bainbridge’s first distinction, that the Fortas filibuster was bipartisan, is neither here nor there if the Constitution requires an up or down vote. Even bipartisan coalitions of Senators are not permitted to act unconstitutionally. That is the essence of the doctrine of judicial review as espoused in an unbroken line of cases beginning with Marbury vs. Madison.

The second distinction drawn by Professor Bainbridge is that Fortas might have lost an up or down vote. That seems to put the cart before the horse. How does anyone actually know what the vote will be on any nominee before it is taken? Senator Voinovich recently changed his mind about voting (in committee) for the confirmation of Bolton as U.N. Ambassador. His shift came after hearing the arguments of other Senators. Some of us remain sufficiently idealistic to think that Senate debate is about more than posturing for the C-SPAN audience. The argument that Fortas would have lost an up or down vote or that the currently blocked nominees would win such a vote is presumptuous. It is also irrelevant. If the Constitution requires an up or down vote on judicial nominees, that requirement is not satisfied by an up or down whip count.

Also irrelevant is the third distinction, that Fortas was nominated to be Chief Justice of the Supreme Court while the current nominees are to the Circuit Courts. If preventing an up or down vote on Circuit Court nominees is unconstitutional, as Republicans claim, how can it be constitutional to block such a vote on a Supreme Court nomination?

The fourth distinction, that there were ethics charges against Fortas, might be a good reason for a Senator to vote against him in the up or down vote but is has no bearing on whether such a vote is required.

The final distinction is that Fortas was nominated by a lame duck president. The Constitution provides that the President serve a four year term. It does not specify that the term is to be three and a half years. The Fortas nomination was submitted by a duly elected President. If a judicial nomination results in a constitutionally required up or down vote, the political status of the President submitting the nomination is neither here nor there.

If the Republican position on the “constitutional option” is one of principle, the principle seems to be:

The Constitution requires an up or down vote on a nomination to a Circuit Court (but not the Supreme Court) unless the nominee faces ethical charges, or the nominee might lose anyway, or a bipartisan group of Senators oppose the nomination, or the President making the nomination is near the end of his term.

Does anyone care to submit some evidence of original intent to support that position?

The plain fact is that Republicans must abandon one of their talking points. If they wish to argue that an up or down vote is constitutionally required, they must abandon the argument that the filibuster of judicial nominees is unprecedented and just acknowledge that they participated in an unconstitutional act by supporting the filibuster of Abe Fortas.

If they wish to distinguish the filibuster of Fortas from the current ones, they must give up the argument that the filibuster of judicial nominees is unconstitutional.

They can not have it both ways.