Sen. Patrick Leahy
Larry Downing  /  Reuters file
Ranking Democratic Judiciary Committee member Sen. Patrick Leahy once opposed filibusters of judicial nominees. Now he supports them.
By Tom Curry National affairs writer
updated 4/26/2005 11:55:27 AM ET 2005-04-26T15:55:27

With the battle over Democratic filibusters of President Bush's judicial nominees about to escalate, Senate Majority Leader Bill Frist said Sunday, "If what Democrats are doing is wrong today, it won’t be right for Republicans to do the same thing tomorrow."

But history shows that Republicans did something similar to the Democrats' filibusters five years ago.

In 1999 and 2000, before he became majority leader, Frist was one of the Republican senators blocking President Clinton’s nominee to the Ninth Circuit Court of Appeals, Richard Paez.

Frist and others repeatedly prevented a vote on the Paez nomination. In 1999, Frist and 52 other Republicans voted against a motion to proceed to a vote on Paez.

Six months later, Frist voted against cutting off extended debate — a filibuster — on the nomination.

Then he voted for a motion to postpone a vote on the nomination.

And finally on March 9, 2000, four years after Clinton nominated Paez to the appeals court, Frist was on the losing end of a 59-39 vote on the nomination itself.

Leahy’s concern in 2000
Protesting the maneuvers by Republican senators, Sen. Patrick Leahy, D-Vt., told the Senate on March 9, 2000, “Whoever the next president might be, if it is a Republican president, do we start doing the same things to him the Republicans have done to President Clinton?”

We now know the answer to Leahy’s question: yes.

Leahy and other Democrats are doing to President Bush what the Republicans did to Clinton. Such delays “should not be done in judicial nominations,” Leahy said in 2000. “We should protect the integrity and the independence of our federal courts.”

“We had an intervening election after the (Paez) nomination was first made, and President Clinton won,” noted Sen. Russ Feingold, D-Wis., on March 8, 2000. “It is indefensible to hold a nomination hostage for his entire second term. It defies the clear constitutional prerogatives of the duly elected president to choose nominees to the bench and the duty of the Senate to say yes or no.”

“I plead with my colleagues to move judges with alacrity, vote them up or down,” said Sen. Charles Schumer, D-N.Y. during the Paez saga. “This delay makes a mockery of the Constitution.”

Leahy, Feingold, and Schumer voted to block votes on 10 of Bush’s judicial nominees in 2003 and 2004. Today Leahy, Feingold, and Schumer are playing the role Frist played in 2000.

And Frist, once an agent of obstruction, is moving to change the rule on filibustering nominees so that the Senate can, as Schumer said, “vote them up or down.”

“I don’t think it’s radical to ask senators to vote. I don’t think it’s radical to expect senators to fulfill their constitutional responsibilities,” Frist said Sunday at a rally organized by the Christian conservative group Family Research Council.

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Filibuster's history
The filibuster has been used to kill legislation to extend voting rights to black Americans and to protect them against lynching. For decades, Southern senators defended the filibuster as necessary to protect the culture of segregation.

Liberals were incensed.

“It is a travesty to wrap the mantle of ‘free speech’ around the filibuster. That is exactly what the filibuster is not,” declared a 1956 New York Times editorial previewing the following year's battle over a civil rights bill.

Liberals spent much of the 1950s and 1960s trying to abolish or curtail the filibuster, seeing it as a procedural bastion of racism. It is easy to see how Frist might invoke this history by trying to bring an African-American judicial nominee, Janice Rogers Brown, to a vote on the Senate floor.

Democrats regard the 60-vote requirement to end debate as the new threshold for judges, even though the Constitution has no such super-majority requirement.

Sen. Barbara Boxer, D-Calif., explained at a rally by the group a few weeks ago: “We think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super-important position. There ought to be a super-vote, don’t you think so?”

One solution: a swap
History suggests one way out of the stand-off: Bush would accept a few Democratic-recommended nominees; in return the Democrats would agree to not filibuster any Bush nominees.

Trade-offs were not unknown in the past.

In 1961, President Kennedy agreed to nominate segregationist judges such as William Harold Cox to the bench because in order to enact his legislative agenda, he needed the cooperation of the Southerners who controlled congressional committees.

"For 986,000 Negro Mississippians, Judge Cox will be another strand in their barbed wire fence," lamented Roy Wilkins, head of the National Association for the Advancement of Colored People, in a protest to Kennedy when the Cox nomination was announced.

In 1986, Democrats thought Sen. Slade Gorton, R-Wash. was ready to join them in defeating President Reagan’s conservative appeals court nominee Daniel Manion.

Gorton decided to vote for Manion after White House officials called him in the middle of the vote on the nomination to tell him that Reagan had agreed to proceed with a district court nominee Gorton wanted.

Gorton’s man: William Dwyer, a Democratic lawyer who’d worked with Gorton when he was state attorney general.

The Senate confirmed both Dwyer and Manion. Dwyer died in 2002; Manion is still serving.

But one could argue that the Manion-Dwyer trade was a unique transaction and not suited to averting the large-scale ideological struggle that Democrats and Bush are now fighting.

There is no sign that such a trade-off is now in the works. "It would be like negotiating with terrorists," said one Senate Republican aide, who argued that Democrats would raise their demands higher and higher if Bush tried to placate them with a few judicial nominees.

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