Roll Call
January 24, 2005
To the editor:
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Norman Ornstein's defense of judicial filibusters ("Ghost of Abe Fortas Hangs Over Discussion of Judicial Filibusters," Dec. 13, 2004) missed its target.
Never before in history had there been a true filibuster (i.e. permanent, minority blockage) of a judicial nominee until 2003. A single failed cloture vote, for procedural reasons or to extend debate, does not a filibuster make. Historically, failed cloture votes on judicial nominations have always been followed by successful cloture votes and majority confirmation votes. The one exception was Fortas, whose nomination was pulled after a single cloture vote - four days in - failed with 45 votes, indicating Fortas lacked majority support. The cloture vote functioned as a "test vote" to avoid subjecting Fortas (and President Lyndon B. Johnson) to humiliating rejection. Fortas' bipartisan opponents signaled willingness to proceed to an up-or-down floor vote if necessary.
To repeat: The current Democratic judicial filibusters are the first permanent denial of cloture to nominees with majority Senate support.
Ornstein quotes Sen. Robert Griffin (R-Mich.) from the time, but misses his most salient words: "[T]hus far, there have been only four days of Senate debate on this very important, historic issue. ... [A] filibuster, by any ordinary definition, is not now in progress." And: "An examination of the Congressional Record ... clearly reveals that the will of the majority was not frustrated. ... On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated."
Regardless, if Ornstein - and Senate Democrats - wish the Fortas case to be their standard, fine: I'm sure for contentious nominees the majority would be glad to allow one cloture vote and four days of debate.
C. Boyden Gray
Chairman,
Committee for Justice
Former White House counsel