Filibuster: Deja Vu All Over Again

With the President Bush's recent renomination of 7 judges who failed to be confirmed in his first term, attention is being focused once again on the so-called "obstructionist" tactics of the minority Democrats, particularly the filibuster. One of the claims I hear recently is that the use of the filibuster against judicial nominations is "unprecedented". This claim can only be earnestly made by those who suffer from selective memory (often a symptom of extreme partisanship). The Senate rules as far back as 1949 explicitly anticipated the use of cloture on judicial nominations. The filibuster was famously used to defeat the nomination of Abe Fortas to Chief Justice in 1968. During much of the Clinton administration, when Republicans controlled the Senate, the filibuster was not needed as they had other "obstructionist" tactics at their disposal, such as not even letting nominations get out of committee, or the infamous "secret hold". (63 of President Clinton's nominations never made it to the Senate floor.) However, when in the minority, the Republicans did indeed attempt to filibuster judicial nominees (e.g., Judges Paez and Berzon in 2000; Paez who had languished 4 years in committee). It was also used in 1993 against an Asst Attorney General nominee Walter Dellenger, and defeated the ambassadorial nomination of Sam Brown in 1994. The whole history has been documented by the Congressional Research Service.

I find it particularly amusing to look back to the 103rd Congress (1993-94), when Democrats controlled the Presidency and the Senate, and to read some of the debates about the filibuster. Today's Republican cries of "obstructionist" are no different than what the Democrats were saying back then. It may be too much to ask, but I offer this trip back 12 years in time in hopes that people can see that what comes around goes around.

This is not the House. This is the U.S. Senate. And it has a proud history of protecting the rights of a minority, and even a minority within a minority, whether based on party, philosophy, region, or ideology. If the complaining Senators want to see less frequent use of the filibuster, I respectfully suggest that those in the majority consider the idea of greater consultation with us, the Republicans. [Sen. Simpson, R-WY, 9/28/94]

If we had the majority we would not have to filibuster. ... But it is very fundamental, obviously, that we have one way to stop legislation or to bring about change if we are going to be participants in the U.S. Senate on this side of the aisle. I do not fault my colleagues on the other side of the aisle. I assume we would be making the same arguments if we had the majority, and they would be making the same arguments if they were in the minority. [Sen. Dole, R-KS, 5/7/93, recognizing that both sides argue from temporary convenience]

The filibuster has a new best friend: The Republican Party. They embrace the filibuster. They love the filibuster . They use it lovingly. They are proud to put on these filibusters, and they say so themselves. The filibuster party is the GOP. In the past 2 years, filibuster tactics have been used 60 times. Let me repeat that: In the past 2 years, filibuster tactics have been used 60 times. It was used only 9 times in the entire decade of the 1980's. By the way, during that period of time, the Republicans had control of this Senate, so we Democrats understood that you had to get things done no matter which party was in control. We did not stop legislation. I hope the American people will hear that. Filibuster tactics were used 60 times in the last 2 years, compared to only 9 times in the entire decade of the 1980's. [Sen. Boxer, D-CA, 9/27/94, now 10 years later she's the filibuster's best friend]

It is only recently in our Nation's history that the filibuster has come to be used as a party tactic and as a regular occurrence in the Senate. Contrasted with that more than half-century in which there were fewer than one filibuster a year, in the most recent Congress, the 102d Congress, here in the Senate there were filed motions to end filibusters 48 times. Forty-eight times the Senate had to attempt to break a filibuster. It is very clear that what is occurring in the Senate now is without precedent in our Nation's history and is, I believe, most regrettable. We now confront a filibuster on a regular, almost weekly, basis on almost every major bill that we attempt to bring up. [Sen. Mitchell, D-ME, 5/11/93. So if it was unprecedented in 1993, how can it still be unprecedented in 2005?]

They have that power. There is not any question about it. This filibuster is their way of trying to obtain political recognition in the wake of their defeat by the vote of the people last November. [Sen. Hollings, D-SC, 4/3/93. Why does that sound so familiar?]

I remember, I was in the minority, I was the leader in the minority. We may be in the minority again some day. I wanted to protect minority rights. That is what this Senate is all about. That is why the Senate is still the greatest institution, one reason why. I want to protect minority rights. But let me tell you, Mr. President, I am getting a belly full of this abuse of minority rights. There comes a time when the majority has to control. [Sen. Byrd, D-WV, 4/1/93]

Senator being able to come to the floor and under the rules of the Senate--not the traditions of the Senate, the rules of the Senate--exercise his or her right, which I respect, to filibuster a nominee, or to attempt to defeat a nominee. That is perfectly within their right. That is how it should go. That is what we should do. And that is what is happening now. [Sen. Biden, D-DE, 10/7/93, at the Dellenger nomination, a rare Democrat actually defending the filibuster.]

I am glad to see that this issue is coming before the full Senate for a vote on the merits without a filibuster requiring 60 votes for cloture to bring the nomination to a vote. Had there been a filibuster or an effort to stop this issue--Chief Justice Barkett's nomination--from coming to a vote, I would have opposed a filibuster . I think that a filibuster --that is where Senators refuse to conclude the debate until at least 60 Senators vote in favor of concluding the debate--is a procedure which ought to be used very, very sparingly, and not in this sort of a case. [Sen. Spector, R-PA, 4/14/94, a rare Republican actually renouncing the filibuster.]

So I want to make clear my belief that there has been an unprecedented use of the filibuster and obstructionist tactics. It is true that if some Senator stays here long enough, he or she will participate in a filibuster . For most of us, it has been once or maybe twice in 10 or 15 years, somewhat consistent with the historical average. But when you have the number, the frequency of filibusters, even the subjects--here we had filibusters today on whether we are going to promote an Air Force colonel to be a general. And we had to file a motion to end the filibuster on that. And that was filed only after I was told publicly here and on the record it would be necessary, otherwise we would not be able to get to it. What once was reserved by common consent and restraint to issues that were of grave national importance and really were not partisan in any way, has become an everyday mechanism in the Senate. I regret that and I think Senators in the future are going to regret it. If this number keeps spiraling upward as it has in recent years, from once every 6 1/2 years in the last century to less than once a year early in this century to 20, then 30, then 40, now 70 times in a Congress, it is going to be extremely difficult for whoever is running the Senate--and someday that is going to be Republicans. I do not think it is going to be next year, but certainly we know that at some point in our history--we do not know when--Republicans will be in control of the Senate again. When that happens I think they will regret the consequences of the actions taken during this session. [Sen. Mitchell, D-ME, 10/8/94, in closing the session, correctly predicting that obstructionism runs both ways eventually.]