ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Today on MSNBC’s “First Read" there was some discussion of the Fortas nomination in 1968:

[W]e once again ask this question, first posed by congressional scholar Norm Ornstein: If Fortas didn't seem to have majority support, then why was he filibustered? Why didn't he receive an immediate up-or-down vote?... Ornstein replies that this filibuster, no matter how you slice it, helped defeat Fortas, and that debunks the GOP argument that judicial filibusters are unprecedented. "They are trying to call this pig a swan," Ornstein says.

If the debate on Fortas ever developed into a true "filibuster," that occurred no earlier than the cloture vote. Indeed, Ornstein has acknowledged that a filibuster does not become clear before a cloture vote occurs:

[A]ny effort to stop the debate and move to a vote can't be done without filing, at that point, a motion for cloture to stop the debate and bring to it a vote (sic); and that, under the rules, takes 60 senators to do and to stop. So it'll be clear that they are acting in an extended fashion [i.e. filibustering], but it's not going to be through some formal announcement or because the Senate itself completely comes to a halt.

Thus, it was ordinary debate that helped diminish support for Fortas, rather than a subsequent filibuster. Notice that cloture votes have been happening on Bush's nominees with 51 Senators clearly supporting confirmation. That simply never happened to Abe Fortas, no matter how you slice it.