Filibustering a New Majority for Cloture

Scarberry, Mark Mark.Scarberry at
Wed Nov 2 17:01:32 PST 2005

I have to disagree with Sandy, though it certainly can be argued that there
is a precedent for filibustering a Supreme Court nomination. Sandy says:


"The problem is that it's demonstrably false that filiibusters of judicial
nominations violate Senate practices and procedures, traditions, whatever
that might mean.  Let's just go back to what the Republicans did to the
Fortas nomination."


First, the Fortas filibuster was bipartisan. 24 Republicans and 19 Democrats
voted against cloture. (35 Democrats and 10 Republicans voted to invoke
cloture.) Second, at least some of the participants say that the filibuster
was intended simply to defer the vote pending additional deliberation and
release of additional information. (As it turned out, additional information
- that Fortas had a deal with the Wolfson Foundation for a lifetime $20,000
a year consulting fee - did not become public until several months after the
nomination was withdrawn.) In fairly short order - after only four days of
filibustering, from September 26, 1968 to October 1, 1968, when the cloture
vote failed - that deliberation resulted in withdrawal of the nomination.
<> . It seems that most historians
conclude that it was a real filibuster designed to block the nomination for
the entire short remaining time of Johnson's Presidency, see id., but that
does not seem clear to me. Please note that what I said was contrary to
Senate practices and procedures was a judicial filibuster designed
permanently to prevent a vote. 


Second, one occurrence, under what one might call the extraordinary facts of
the Fortas nomination, may not suffice to show a practice, procedure, or
tradition. Note that only one cloture vote was taken, after only four days
of debate. The other extraordinary facts include the following:


"The hearing also revealed that Fortas, whose salary as a justice was
$39,500, had accepted a $15,000 payment to lead seminars at American
University. It turned out that Fortas's former law partner raised the money
from a coterie of business moguls, including the president of the New York
Stock Exchange and the vice president of Philip Morris." Id.




"Fortas became the first sitting associate justice, nominated for chief
justice, to testify at his own confirmation hearing. Those hearings
reinforced what some senators already knew about the nominee. As a sitting
justice, he regularly attended White House staff meetings; he briefed the
president on secret Court deliberations; and, on behalf of the president, he
pressured senators who opposed the war in Vietnam. When the Judiciary
Committee revealed that Fortas received a privately funded stipend,
equivalent to 40 percent of his Court salary, to teach an American
University summer course, [Republican Senate leader] Dirksen and others
withdrew their support. Although the committee recommended confirmation,
floor consideration sparked the first filibuster in Senate history on a
Supreme Court nomination." (From the Senate website at
me_Court_Appointment.htm> .)


C. Boyden Gray noted that:

"[F]our days of debate on a nomination for chief justice is hardly a
filibuster, as the closing remarks of then-Sen. Robert P. Griffin, who led
the opposition against Fortas, make clear: 'When is a filibuster, Mr.
President? . . There have been no dilatory quorum calls or other dilatory
tactics employed. The speakers who have taken the floor have addressed
themselves to the subject before the Senate, and a most interesting and
useful discussion has been recorded in the Congressional Record: 
" 'Those who are considering invocation of cloture at this early stage on
such a controversial, complex matter should keep in mind that Senate debate
last year on the investment tax credit bill lasted 5 weeks; that the Senate
debated the Congressional reorganization bill for 6 weeks; and that we spent
3 weeks earlier this year on the crime bill.' "
<> . 


I don't hesitate to call it a filibuster, but Republicans suggest these and
other ways by which it can be distinguished; I did not note all of those
ways in my earlier post. But some of them at least raise a serious question
whether the Fortas filibuster creates an applicable practice, procedure, or


With regard to the withdrawal of the Miers nomination, there was of course
no filibuster. Members of the President's party convinced the nominee that
her nomination should be withdrawn (and of course there was some serious
criticism of her from Democrats as well especially with regard to her
answers to the committee questionnaire). 


With regard to bottling up nominees in committee, that is a practice that
should stop with regard to all judicial nominees; is it perhaps relevant
that it has never, so far as I know, occurred with respect to a Supreme
Court nominee? In the case of Supreme Court nominees it seems that Senate
procedure precludes it; nominees for the Supreme Court are reported to the
floor even after a negative committee vote. Perhaps someone knows what rules
lead to that result, and whether those rules would also prevent the
committee from sitting on a Supreme Court nomination indefinitely without
scheduling hearings or a vote, as I suppose they do.


Mark S. Scarberry

Pepperdine University School of Law


-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at] 
Sent: Wednesday, November 02, 2005 12:33 PM
To: Scarberry, Mark; CONLAWPROF at
Subject: RE: Filibustering a New Majority for Cloture


The problem is that it's demonstrably false that filiibusters of judicial
nominations violate Senate practices and procedures, traditions, whatever
that might mean.  Let's just go back to what the Republicans did to the
Fortas nomination.  And, as a number of people have pointed out, poor Ms.
Miers was a victim of an auto-de-fe that was not in the least interested in
giving her a fair chance to state her views and get an up-down vote (which
she might have won with significant Democratic support).  (And, frankly, I
fail to see that the deliberate refusal of Orrin Hatch to schedule hearings
for Elena Kagan and other Clinton nominees is any less prolematic than
taking advantage of the Senate rules to kill a nomination by endless


Frankly, I have a modicum of respect for the "constittional argument" (as in
filibustering nominations is unconstitutional), though I disagree with it.
I have no respect for an argument based on a thoroughly bogus and dishonest
reading of the history of the United States Senate.  But, then, no one
expects Dick Cheney to have the slightest regard for the facts anyway, if
they get in the way of his agenda.  (I know this will upset some of you on
this list, but I think it is a simple fact and not a "partisan rant.")


In any event, I remain unshaken in my view that the only way Alito should be
confirmed is through the "nuclear option" because it's the only way there
will ever be another liberal on the Supreme Court.  (To Judge Alito:  It's
nothing personal, just business!)





From: conlawprof-bounces at on behalf of Scarberry, Mark
Sent: Wed 11/2/2005 1:56 PM
Subject: RE: Filibustering a New Majority for Cloture

The focus of the Senate Republican Policy Committee's statement on the
"nuclear" or "constitutional" option was on the constitutional power of the
Senate to make rules by majority vote, not on the supposed
unconstitutionality of the filibustering of a judicial nominee. At least
that was my impression several months ago when I read it carefully. It can
be found at
<> .

If the "constitutional" option requires a ruling from the chair that
judicial filibusters violate the Constitution, I could not support it. My
sense, instead, is that the option would require a ruling from the chair
that a judicial filibuster (at least the kind that is designed permanently
to prevent a vote rather than to give time for deliberation) is contrary to
prior Senate practices and procedures. That seems to me to be right. I
suppose the procedural device described by Paul would then be used to
prevent a filibuster on the question of whether to uphold the ruling of the
chair. The result would be a new precedent of the Senate that would prohibit
judicial filibusters (and restore, in the view of the Republicans, the prior
Senate practices and procedures).

Unrelated grammatical question: Garner and other English usage gurus suggest
that I should have said "question whether" rather than "question of whether"
in the second sentence above. But my ear says I'm right to include the "of."

Mark S. Scarberry
Pepperdine University School of Law

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