Swing State Project

From Media Matters:

Falsehood #1: Democrats' filibuster of Bush nominees is "unprecedented"
The most prevalent talking point put forth by advocates of the "nuclear option" is that Democratic filibusters of 10 of President Bush's judicial nominees are "unprecedented" in American history.

But Republicans initiated a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote," Griffin said, according to a May 10 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).

Cloture votes were also necessary to obtain floor votes on Clinton judicial nominees Richard A. Paez and Marsha L. Berzon in 2000, and Republicans attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994. Senate Majority Leader Bill Frist (R-TN), who is leading the Republican opposition to Democratic filibusters, voted against cloture for the Paez nomination.
And these are merely instances when Republicans filibustered Democratic presidents' judicial nominees. The Republican-controlled Senate blocked approximately 60 Clinton nominees through other means. This included strict enforcement under Clinton of the "blue slip" policy, which at the time allowed a senator from a nominee's home state to block a nominee simply by failing to turn in the blue-colored approval papers required for the nomination process. While Judiciary Chairman Orrin Hatch (R-UT) strictly adhered to the "blue slip" policy to allow Republicans to block Clinton nominees, he relaxed the policy nearly to the point of elimination in his efforts to push through Bush's nominees.

For example, Hatch held committee votes on the nominations of 9th U.S. Circuit Court of Appeals nominee Carolyn B. Kuhl over the objections of Sen. Barbara Boxer (D-CA), as well as four 6th Circuit nominees over their home state senators' objections.

Because of these numerous responses to Falsehood #1, proponents have honed their message in order to continue arguing that the present Democratic effort is "unprecedented." The argument has now been reduced to: It is unprecedented for a nominee to be blocked who 1) has clear majority support in the Senate; 2) has actually reached the Senate floor for an up-or-down vote; and 3) did not ultimately get confirmed after being filibustered.

The "clear majority" qualifier is designed to discount Fortas, even though "[i]t is impossible to gauge the exact support for Fortas because 12 senators were absent for the 'cloture' or 'closure' vote, which failed to halt the filibuster," as the Washington Post noted on March 18. The qualifier that a nominee reach the Senate floor disregards the approximately 60 Clinton nominees whom the Republican-led Senate blocked in committee. The qualifier that the filibuster be ultimately successful gets around Republican efforts to filibuster Paez and Berzon, who eventually won Senate confirmation.

Burns wants to talk about precedent? From People for the American Way:

Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option

Violation # 1. Rule V: The Senate must follow its Rules to amend its Rules
Paragraph 2 of Rule V states expressly that “Rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these Rules.” (emphasis added). The proposed nuclear option is a deliberate end-run around the Senate’s regular process (discussed below) for amending its own Rules because Senator Frist does not have the strong bipartisan support he needs in the current Senate to follow the regular order.

Violation # 2. Rule V: Suspending the Rules without amending them.
The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may only suspend its Rules either by unanimous consent or by adopting a motion to suspend the Rules. Adoption of such a motion requires a 2/3 vote of Senators present.³ The nuclear option, by relying on a simple majority vote to change the Rules without changing the text (arguably a kind of suspension), clearly violates the 2/3 vote requirement.

Violation # 3. Rule XXII: Violating the process for changing the Senate’s Rules.
Paragraph 2 of Rule XXII establishes the requirements for ending debate on a proposed change to the Senate’s Rules. Under Rule XXII, a cloture petition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules cannot be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end debate.

Violation #4. Failing to submit a constitutional Point of order to the Senate.
Proponents of the nuclear option purport to justify their unprecedented approach by invoking the U.S. Constitution – to the point of trying to rename the nuclear option the “constitutional option.”⁴ Some have even argued that the filibuster of judicial nominations is unconstitutional, and that the Senate can therefore ignore its process for amending the Rules to eliminate it.⁵ Under long-established precedents of the Senate, when a point of order with an asserted constitutional basis is raised, the Chair does not rule on the point of order but instead submits it directly to the full Senate.⁶ However, such a point of order is debatable and it would take 60 votes to end debate on the constitutional point of order and bring it to a vote. Because it is not clear that Senator Frist has 51 votes for the nuclear option – much less 60 – it is likely that Vice President Cheney will rule directly on Frist’s “constitutional” point of order, violating Senate precedent.

Violation # 5. Rule XXII: Ending debate on a nomination.
The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on “any measure, motion, other matter pending before the Senate,” including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators’ right to debate is ended by simple majority vote, this will constitute an express violation of Rule XXII’s 60 vote requirement. In essence, Rule XXII would be changed, but not in a manner provided by the Rules of the Senate.

Violation # 6. Overriding the Senate’s Parliamentarian
The Senate Parliamentarian is the officer charged with keeping the precedents of the Senate and advising the presiding officer of the Rules and precedents of the Senate if a point of order is raised from the floor. The current Parliamentarian, Alan Frumin, has worked for that office as either Parliamentarian or assistant Parliamentarian since 1977 under both Democratic and Republican majorities. It has been widely reported that the Senate Parliamentarian will advise the chair that any point of order to force a simple majority vote to end debate on a nominee would violate the Rules and precedents of the Senate. Therefore, for the nuclear option to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. According to the nonpartisan Congressional Research Service, such an action would “constitute an extraordinary proceeding involving peremptory departure from the established system of Senate procedure.”⁷

Vice President Cheney will need to ignore the Parliamentarian to invoke the nuclear option because Republicans must engineer a scenario where, as stated above, nuclear option opponents appeal a ruling of the chair endorsing the nuclear option. Frist must ensure that opponents appeal because the appeal itself is debatable, while a motion to table (kill) the appeal is not debatable. If Republican leaders try to overturn an adverse ruling by the chair through their own appeal (which would occur if the chair follows the parliamentarian), opponents could simple filibuster the appeal and a motion to table the appeal would set the opposite precedent than Frist wishes to achieve.

Conclusion:
Filibusters of judicial nominations are clearly authorized by long-established Rules and precedents of the Senate. Should Senators wish to change the Rules and eliminate the filibuster, they should do so under the established process for amending the Rules. Basic notions of the rule of law, fairness, and commonsense dictate that the Senate should obey its rules in confronting and addressing filibusters as it has done for over 200 years.⁸ Senate Republican leaders have avoided this approach, because they do not have the 67 votes required to amend the Rules under the process specified by the Rules. Instead, in an abuse of power unprecedented in Senate history, they plan to break the Rules in an attempt to change them for momentary partisan advantage. As many Senate veterans of both parties have warned, such a precedent starts the Senate down the road of eliminating all filibusters through future “nuclear options,” completing the institutional destruction begun by the current nuclear option.

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Endnotes
1. Charles McC. Mathias, A Bad Option to Take, The Washington Post, May 12, 2005, A21.
2. Statement From the Office of the Majority Leader, May 13, 2005.
3. Alan S. Fruman Ed., Riddicks’s Senate Procedure, United States Senate 1992 p.1266 (Hereinafter Riddick’s).
4. See e.g., Martin B. Gold, Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, Harvard Journal of Law and Public Policy, Volume 28, Issue 1 (2004).
5. In fact, there is no basis in the Constitution for sustaining a point of order that extended debate on judicial nominations is unconstitutional. The Constitution expressly gives the Senate the power to create its own Rules for determining whether to grant or withhold consent to a President’s nominees. For 200 years, the Senate has not required an “up or down” vote on each of the President’s nominees; to the contrary, the Senate has long had Committees to which nominations are referred for review, and these committees have frequently “killed” nominations without an up or down vote by the Senate. Other nominations, including to the Supreme Court, have been brought to the Senate floor, debated and postponed without an up or down vote, denying confirmation.
6. Riddick’s p. 989.
7. Richard S. Beth, CRS Report for Congress, “Entrenchment” of Senate Procedure and the “Nuclear Option” for Change: Possible Proceedings and Their Implications, March 28, 2005 (emphasis added).
8. PFAWF Report: No Defense for the Nuclear Option; A Response to the Harvard Journal of Law and Public Policy Article, March 16, 2005.