Filibustering a New Majority for Cloture

[J. Noble]

At 5:01 PM -0800 11/2/05, Scarberry, Mark wrote:
>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nominee that her nomination should be withdrawn....

Does anyone know how that formally came about. There was Miers' 
widely published letter to the President: "I write to withdraw as a 
nominee to serve as an Associate Justice on the Supreme Court of the 
United States." But I assume there must also have been a 
communication from the President to the Senate formally withdrawing 
his nomination of Miers?

The larger point, whatever the mechanics, is that Miers may have been 
convinced that the nomination should be withdrawn, but it didn't 
happen until the President was convinced. It was the President, not 
Miers, that Sen. Frist visited, and an unidentified Republican on the 
Judiciary Committee telephoned, the day before the nomination was 
withdrawn. I think it's fair to assume that it was the President's 
decision; and that Miers would have obliged if the President insisted 
on gutting it out.

The difference between the Fortas and Miers nominations is that 
Johnson fought tooth-and-nail, taking on the conservative wing of his 
own party, until it became clear, as Mark's numbers reveal, that he 
couldn't win a floor vote, never mind cloture. Miers' nomination was 
withdrawn, so far as I'm aware, without a single senator having 
announced an intention to vote against her. Fortas had lost the tepid 
support of the Senate Minority Leader (Dirksen). Sen. Reid's 
enthusiastic support of Miers was unflagging. Johnson had three 
months left in office. Bush has three years worth of payback, control 
of the RNC, and a midterm election to unload it on. The Fortas 
nomination was dead. Miers could well have been confirmed.

The other difference, which prompted the question I started with, is 
that Johnson withdrew the Fortas nomination (in a statement crafted 
by Fortas). Bush had Miers concede his defeat (on a pretext crafted 
days earlier by Charles Krauthammer as a face-saving surrender).

John Noble
Former associate, Fortas & Koven

At 5:01 PM -0800 11/2/05, Scarberry, Mark wrote:
>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. See 
><http://www.msnbc.msn.com/id/7747167/>http://www.msnbc.msn.com/id/7747167/. 
>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.
>
>and
>
>"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 
><http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm>http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_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.' " 
><http://www.opinionjournal.com/editorial/feature.html?id=110003629>http://www.opinionjournal.com/editorial/feature.html?id=110003629.
>
>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 tradition.
>
>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 law.utexas.edu]
>Sent: Wednesday, November 02, 2005 12:33 PM
>To: Scarberry, Mark; CONLAWPROF at lists.ucla.edu
>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 debate.)
>
>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!)
>
>sandy
>
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Scarberry, Mark
>Sent: Wed 11/2/2005 1:56 PM
>To: CONLAWPROF at lists.ucla.edu
>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 
><http://rpc.senate.gov/_files/Apr2505ConstOptSD.pdf>http://rpc.senate.gov/_files/Apr2505ConstOptSD.pdf.
>
>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."
>Comments?
>
>Mark S. Scarberry
>Pepperdine University School of Law
>
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