Filibustering Obama's Supreme Court Picks?

We all know that during the 110th Congress, Senate Republicans shattered the all-time record for filibusters, obstructing more legislation than any party's caucus in the previous 109 Congresses. Yet as bad as that was, and making 60 votes the requirement for virtually all non-budgetary legislation, the GOP's latest threats nevertheless stand out as particularly atrocious.

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.


In other words, Republicans are threatening a filibuster of judges if they're not happy.

It's never been the rule that a minority caucus in the Senate has had the power to filibuster a President's Supreme Court nominee. Back in 1991, the Democrats did not force the Republicans to come up with 60 votes to put Clarence Thomas on the Court -- and they had 48 votes (including two Republicans) in opposition to the far right jurist. Similarly, the Democrats opted against filibustering Samuel Alito even though 42 members of their caucus opposed his nomination.

Indeed, only once in the history of the United States has a party decided to filibuster a Supreme Court nominee, which the Republicans (what a shock that it was the Republicans, not the Democrats) did back in 1968 when sitting Associate Justice Abe Fortas was nominated by Lyndon Johnson to be elevated to the position of Chief Justice.

The filibuster of Fortas was an abomination four decades ago, just as the filibuster of a nominee of Barack Obama to the high court would be an abomination today. So today's Senate Republicans deserve a great deal of ridicule and excoriation for even attempting to make the threat (which, by the way, I am still skeptical they will have the gall to follow through on).

Tags: 111th Congress, Filibuster, Obama Administration, Senate Republicans, Supreme Court (all tags)



Its worse than that if you read it closer

They didn't threaten to filibuster picks they are not happy with. They threatened to filibuster unless Obama nominated former Bush picks. They are not even asking for moderate Democrats (or Republicans) they are asking for arch conservatives and suggesting they will not settle for anything less.

I didn't think they could become more of a joke, but they just did.

by JDF 2009-03-02 04:35PM | 0 recs
I find it hard to believe

not one Republican, Snowe or Collins included, would vote for an Obama nominee when we were able to get Ginsburg and Breyer on the court with little trouble.

Anyway we don't know when they'll be a SCOTUS opening. Obama may not appoint a nominee until 2011 at which point this problem will likely solve itself.

by DTOzone 2009-03-02 04:48PM | 0 recs
Re: I find it hard to believe

ginsburg has pancreatic cancer and is in her mid 70's if she survives a year i'll be shocked

by theninjagoddess 2009-03-02 05:50PM | 0 recs
Swayze's still alive after a year

and unless they're not telling us something, hers was caught early.

by DTOzone 2009-03-02 05:53PM | 0 recs
Re: Swayze's still alive after a year

it's rare to live more than 6 mos. after a diagnosis of pancreatic cancer, and the survival time drops off faster at higher ages.

by slynch 2009-03-02 06:02PM | 0 recs
Re: Swayze's still alive after a year

Not to be a conspiracy theorist or anything, but they can all afford the magic pill.  To be serious, they do have access to the best medicine available.  The whole "6 months diagnosis" applies to the average patient with average access and average wealth and average doctors.  Neither Swayze nor Ginsburg will be dealing with average anything.  Now, that doesn't mean Ginsburg will necessarily live another 10 years, but I am optimistic for her short term health.

by ProgressiveDL 2009-03-02 06:51PM | 0 recs
Re: Swayze's still alive after a year

the thing is that there is NO treatment that is known to be effective in lengthening survival.

Swayze is on an experimental drug that hasn't been FDA approved yet.  It does seem to work, but I don't know all the details of his case.

Pancreatic cancer is a death sentence--almost no one beats it, and almost no one lives with it for more than a year or so. Usually, it's so advanced by the time it's diagnosed it isn't uncommon to watch a person die within a month of diagnosis.

by slynch 2009-03-02 08:41PM | 0 recs
Re: Swayze's still alive after a year

I guess we'll have to see, then.  I'm sure Obama is thinking of contingency picks for SCOTUS.

by ProgressiveDL 2009-03-03 02:30AM | 0 recs
What your post told me.... that Democrats have been too nice too long.

by Bush Bites 2009-03-02 04:42PM | 0 recs
I Don't Use Profanity Online Much

But f*ck them. Look what they did to Clinton's nominees.

by Zeitgeist9000 2009-03-02 05:03PM | 0 recs
I second that

I think George W. Bush renominated exactly ONE of Clinton's appointees. If Obama wants to be gracious, he can do the same -- by finding the most moderate Bush nominee possible and putting him on a court where his vote won't make a big difference.

But I didn't work my ass off for Obama to see him appt. a bunch of Heritage Foundation, conservative justices. It's our turn. And as far as the Supreme Court goes, Obama shouldn't flinch. He needs to appoint strong, smart, YOUNG liberals. Preferably a few females to get it closer to 50-50 up there. I just don't believe the GOP could stop them.

by existenz 2009-03-02 06:24PM | 0 recs
Re: I second that

I can think of at least two: Roger Gregory and Helene White.  There may have been others.

by Steve M 2009-03-02 06:29PM | 0 recs
Re: I second that

That is one thing , I have no idea who strong smart and young liberals ARE in terms of the judiciary.

by MNPundit 2009-03-02 06:35PM | 0 recs
Re: I Don't Use Profanity Online Much

Yea, Clinton's appointees really got Bork'd. Remind me again of what happened to Bork, and let's not forget how friendly Biden and Kennedy were to Thomas.

by ruaqtpi2 2009-03-03 05:54AM | 0 recs
Re: I Don't Use Profanity Online Much

Bork was rejected for having an unacceptably extreme ideology.  Somehow he's been martyred for this by the revisionist Right, who think that taking ideology into account is the "politics of personal destruction."

by Steve M 2009-03-03 07:31AM | 0 recs
nuclear option time

Maybe Reid (if he has any guts) should remind Republicans of the 2005 deal on filibustering judicial nominees.  Otherwise it's nuclear option time.

I think this is just another empty threat that shuld be ignored.  BTW, the links in the first paragraph point to the same June 2008 HuffPo article by Sam Stein.  Is there a link to this latest threat?

by esconded 2009-03-02 05:09PM | 0 recs
It's not just the S.Ct. It's the federal bench

Conservatives have packed the Courts for 30 years. I agree with your views about the S.Ct. But you need to realize how deep this runs.

by bruh3 2009-03-02 05:13PM | 0 recs
How long do you think it would take me...

To Bitch-slap 41 old white men?

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

I think, if you lined them all up, I could do it in less then 5 minutes.

Of course, David Vitter..I might have to slap him up and down for an extra 20 seconds or so...

by WashStateBlue 2009-03-02 05:17PM | 0 recs
Re: How long do you think it would take me...

Well considering there are NOT 41 White Male Senators, a LONG time....

Come on man, if you are going to post the ridiculous AT LEAST get it right.

by 30000Fine 2009-03-02 07:34PM | 0 recs
Re: How long do you think it would take me...

Ok, I will skip Collins, Snowe and Kay Bailey?

Oh, and compared to most of the suggestions here, WHY is mine ridiculous?

Is what the Republicans suggesting sane?

The whole thing is a fricking insane comedy, Bitch Slaping most of these A-holes would be about the SANIEST possible action at this point.

by WashStateBlue 2009-03-02 08:33PM | 0 recs
Re: How long do you think it would take me...

I meant ridiculous in something that will never happen.    Just saying if you are going to make a joke response than get the info right ;-)

by 30000Fine 2009-03-02 08:40PM | 0 recs
Re: How long do you think it would take me...

OK, it's not going to happen...

But, we can all dream, can't we?

by WashStateBlue 2009-03-02 09:09PM | 0 recs
Re: Filibustering Obama's Supreme Court Picks?

What is the # votes needed for a rules change?

Is it a majority?

by Searching For Pericles 2009-03-02 05:31PM | 0 recs
Re: Filibustering Obama's Supreme Court Picks?

2/3rds majority required for rule changes...

That ain't happening!

by LordMike 2009-03-02 05:32PM | 0 recs
No actually a simple majority

can change the rules--where do you get 2/3?

by Davidsfr 2009-03-02 05:57PM | 0 recs
During the "nuclear option" fight

The GOP argued that a simple majority vote could change the rules. So I think you may be right.

by existenz 2009-03-02 06:25PM | 0 recs
Re: No actually a simple majority

Not in the Senate... 2/3rds required... by rule!

In the house, a simple majority changes the rules... the Senate requires 2/3rds...

If it was a simple majority, then there would have been no need for a "nuclear option".

by LordMike 2009-03-02 07:26PM | 0 recs
Re: No actually a simple majority

Sorry Mike, you need to do your research...  What you are saying IS right... and wrong at the same time.   But ultimately, you don't understand HOW the nuclear option actually works.

To change the rules you do need the 2/3 majority... That's not how the nuclear option works.  It isn't an actual rule change, its an establishment of precedent using parliamentary procedure.

Basically, a Senator raises a point of order calling for immediate vote and citing reasons why.  The chair rules upholding the point of order, citing the Constitution as authority.   At that point, the supporter of a filibuster (the GOP in this case) MUST appeal (otherwise if no one appeals, then it goes to a vote since the point of order has already been upheld).   At that point, the opponents of the Filibuster (the Dems) will move to table the appeal.  This is non-debatable and goes to a majority vote.   The Dems vote and win the table.    At this point, the legislation would move to an immediate vote and at that point PRECEDENT is set removing the Filibuster as an option.   At that point a 2/3 vote would be required to re-initiate the Filibuster.

by 30000Fine 2009-03-02 07:48PM | 0 recs
Re: No actually a simple majority ion

Here this might explain it better.

by 30000Fine 2009-03-02 07:50PM | 0 recs
Re: No actually a simple majority

I think it's pretty well settled that a simple majority can alter the rules at the start of a new Congress, every two years.  There's no valid way for a given Congress to bind all future Congresses to a supermajority requirement.

Changing the rules by a simple majority while a given Congress is already in session is the so-called nuclear option.  Personally, I take it as a given that if the Democrats weren't even willing to try and weaken the filibuster during the standard rules process at the opening of this Congress, hoping for them to do something drastic at this point is just a pipe dream.

by Steve M 2009-03-02 07:50PM | 0 recs
Re: No actually a simple majority

You are mistaken.  Please see above.  

by 30000Fine 2009-03-02 07:56PM | 0 recs
Re: No actually a simple majority

And there is NOTHING out there that states that Senate rules can be changed by a simple majority at the start of the session.  I'm not sure where you are getting that one, but it is ANYTHING but established since it is untrue.  if it was true, the GOP would have changed the rules after the 2004 election... Dems were blocking judges before that election... a whole election passed before the Gang of 14.

by 30000Fine 2009-03-02 07:58PM | 0 recs
Re: No actually a simple majority

It's a very fundamental principle that one Congress cannot bind a future Congress.  This goes all the way back to Chief Justice Marshall, if not further.

by Steve M 2009-03-02 08:13PM | 0 recs
Re: No actually a simple majority

Um no... What are you talking about? Your post makes no sense.

I'm sorry Steve, but what you are saying is just not correct.  This is NOT the case for the Senate.    I'm not sure WHY you are invoking Marshall... if there is some SCOTUS precedent then please post it here... or post something defending your statements... otherwise repeating something wrong over and over won't make it right.

The senate is run by the Standing Rules of the Senate.  These rules are passed and go from session to session in the Senate.  The last changed was the Earmarks legislation passed by Obama.   These Rules are IN EFFECT from Senate to Senate.

BTW, The house uses different procedural rules...Jefferson's manual which Jefferson wrote as VP presiding over the Senate.

by 30000Fine 2009-03-02 08:48PM | 0 recs
Re: No actually a simple majority

"The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature.

The correctness of this principle, so far as respects general legislation, can never be controverted."

Fletcher v. Peck, 10 U.S. 87, 135 (1810) (Marshall, C.J.)

The only exceptions to this rule are treaties or other acts of Congress that create vested rights in a third party.  Amendments to the Senate Rules are most certainly NOT in that category.

If a Republican Congress enacts a rule that says all tax increases must require 80 votes, you think all future Democratic Congresses are just stuck with that?  Really?

In 1975, at the start of a new Congress, the filibuster threshold was reduced from 67 to 60 votes - by a simple majority of the Senate.  You could look it up.

"[T]he precedent stands that a simple majority of the Senate can change its rules at the beginning of a Congress."

Sen. Edward Kennedy (D-MA)

"The Senator from Minnesota (Mr. MONDALE)--and no other Senator I know of who has asserted the article I, section 5 right during this debate--does not, by the adoption of this rule of the 94th Congress, seek to bind the Members of future Congresses. Nor do we waive our constitutional right in future Congresses. Nor do we waive the right of Members of future Congresses. Even if we wanted to, we could not, under the U.S. Constitution, bind a future Congress or waive the right of a future majority."

Sen. Walter Mondale (D-MN)

You act like I'm just making this up out of nowhere.  That is hardly the case.  There is a long, long history here.  The leading authority on the history and rules of the Senate concurs:

"The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the
beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.


The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time .... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate.... It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.

[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress."

Sen. Robert Byrd (D-WV)

by Steve M 2009-03-02 09:38PM | 0 recs
Re: No actually a simple majority

The US House sets it rules at the beginning of each new congress because it's considered an entirely new body as they all just stood for election. The US Senate on the other hand is an enduring body as only 1/3rd of the members are up for election at any one time. The rules of the Senate endure unchanged between Congresses and it does take a 2/3rds vote to change a Senate rule.

I don't know what to say regarding what you've pasted (perhaps that is just there thoughts on how it should be), but I can tell you that 2/3rds to change a rule is how the Senate operates in fact.

by Quinton 2009-03-03 10:34PM | 0 recs
Re: No actually a simple majority

It's 2/3s to change the rules.  This isn't a rule change its an establishment of Senatorial operational precedent.

by 30000Fine 2009-03-02 07:49PM | 0 recs
Re: Filibustering Obama's Supreme Court Picks?

I think the snip from the article (which isn't linked, btw) makes this sound more dramatic than it appears.  They can ask all they want for a handful of Bush nominees to be re-appointed, but what they're really insistent on is a continuation of the tradition where home-state senators are consulted on judicial nominations.  Of course, since we all know Obama is big on public displays of reaching out to the other side, it's very unlikely that consultation will be a problem.

There is no way the GOP keeps all 41 Republicans on board with a partisan filibuster of some judicial nominee.  It's not even worth worrying about.  This is just everyday political bluster.

by Steve M 2009-03-02 05:33PM | 0 recs
Re: Filibustering Obama's Supreme Court Picks?

Fixed the link. Thanks for the heads up.

by Jonathan Singer 2009-03-02 05:54PM | 0 recs
you are 100% right, this is being distorted

The actual letter can be seen at the link below, and the Republicans senators refer to how Bush appointed some Clinton people. Senators have traditionally given input on appointees from their states, so I don't think there's anything new there either. ahy_letter.pdf

by John DE 2009-03-02 06:39PM | 0 recs
Remember, it's the 'Constitutional'

Option, not the Nuclear Option.

If they want to play Bambi to the Democrats' Godzilla, gawd bless 'em.

by Geekesque 2009-03-02 06:06PM | 0 recs
Re: Remember, it's the 'Constitutional'

Constitutional Option is incorrect as well...  Procedural Option is probably the closest to the truth.  But I guess the other two sound better.

by 30000Fine 2009-03-02 08:00PM | 0 recs
Re: Remember, it's the 'Constitutional'

And yes, I know its been called that before in its reference to the individual houses having constitutional authority to do their own rule... I just think its not that accurate a name.

by 30000Fine 2009-03-02 08:56PM | 0 recs
Maybe Bobby Jindal could

guest speak the filibuster, if that were allowed. I'm sure he'd best Strom Thurmond of yesteryear. Better yet, just record a radio show with Limbaugh and Piyush, and play it on a tape for the filibuster.

by Lakrosse 2009-03-02 06:41PM | 0 recs
Re: Filibustering Obama's Supreme Court Picks?

I've learned to never underestimate the ability of Republican congresscritters to be a**holes.

by newms 2009-03-02 06:49PM | 0 recs
Never underestimate the GOP

when it comes to gall.

by jroyale 2009-03-02 08:08PM | 0 recs


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