Tags: Presidential History | Supreme Court | filibuster | Senate | confirmation | nuclear option

Bob Dole, Trent Lott and History Back 'Nuking' Gorsuch Filibuster

Image: Bob Dole, Trent Lott and History Back 'Nuking' Gorsuch Filibuster
Supreme Court Justice-nominee Neil Gorsuch (AP Photo)

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Thursday, 06 Apr 2017 07:59 PM Current | Bio | Archive

In the hours since the Senate voted Thursday to end the filibuster for nominees to the Supreme Court, there has been a considerable furor in the national press about the potentially dangerous course Republican lawmakers have taken to insure a vote for Supreme Court nominee Neil Gorsuch.

"In deploying the so-called nuclear option," concluded The New York Times, "lawmakers are fundamentally altering the way the Senate handles one of its most significant duties — a sign of the body's creeping rancor in recent years after decades of at least relative bipartisanship on Supreme Court matters."

But two former senators who have served as minority and majority leader of the Senate offered sharply different opinions on the deployment of the nuclear option; moreover, a study of the history of the filibuster shows it has been deployed precisely one time in a nomination to the Supreme Court — and on that occasion, it had bipartisan backing.

In a strongly worded statement before the vote Tuesday, former Senate Republican leaders Bob Dole, R-Kan., and Trent Lott, R-Miss., said "drawn from a combined 18 years as floor leaders, we support eliminating the pretense of a 60-vote 'requirement.' In the hands of today's Democrats, 60 votes assures defeat of future Republican presidential nominees. As their opposition to Gorsuch shows, no similar nominee could ever be confirmed if that 'requirement' remains."

As for the charge Senate Republicans were taking the nomination process in a new direction, the view of Dole and Lott is the polar opposite.

"We have watched as Senate traditions have been steadily eroded," they wrote, "including the filibuster of Bush's judicial nominees and the changing of the Senate rules to push through President Barack Obama's lower-court nominees."

Tradition, in fact, seems to be on the side against the filibustering of Supreme Court nominees. Until 1949, in fact, there was no filibustering against nominations at all because the "cloture rule" — the two-thirds of the Senate (now 60 votes) required to break a filibuster — applied to legislation and not to-be appointments.

According to a history compiled by the Judicial Crisis Network, "from 1949 to 2003, cloture motions were filed on only 17 judicial nominees. Cloture was successful on the first attempt in 11 cases . . . In the six instances where cloture was not invoked on the first try, no more than two attempts were necessary, and those nominees were ultimately confirmed."

The lone exception is the only Supreme Court nomination ever to be successfully filibustered: Associate Justice Abe Fortas, named by President Lyndon Johnson as chief justice in the summer of 1968 (after LBJ had announced he was not seeking re-election that year).

Because of Fortas' nomination so late in Johnson's last term, and because of ethical concerns about the nominee, the filibuster against him was bipartisan. The vote for cloture was 45 – far below the two-thirds of the Senate required at the time — and Fortas finally asked his nomination be withdrawn.

A year later, he resigned from the court as the ethical questions about him took their toll.

As for a history on which opponents of the nuclear option could make their case, there is no there there.

John Gizzi is chief political columnist and White House correspondent for Newsmax. For more of his reports, Go Here Now.

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Two former senators support the Senate's nuclear option; moreover, a study of the history of the filibuster shows it has been deployed precisely one time in a nomination to the Supreme Court — and on that occasion, it had bipartisan backing.
filibuster, Senate, confirmation, nuclear option
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2017-59-06
Thursday, 06 Apr 2017 07:59 PM
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