Filibustering a New Majority for Cloture

[Chambers, Henry]

If the Senate rule is that debate is unlimited (at least until cloture),
when does unlimited debate become a filibuster?

 

-Hank 

 

Henry L. Chambers, Jr., Professor of Law

University of Richmond School of Law

28 Westhampton Way

Richmond, VA 23173

804-289-8199

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, November 02, 2005 8:02 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Filibustering a New Majority for Cloture

 

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public until several months after the nomination was withdrawn.)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/. 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_Su
preme_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. 

 

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.

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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051103/b9467ca5/attachment.htm