Contrary to recent mythology, there has never been a Senate tradition of filibustering nominees to the Supreme Court. Only once in history has there been a clear attempt to filibuster a first-time nominee to the Supreme Court, as in the case of the 2006 Samuel Alito confirmation. This recent, and lone, occurrence hardly constitutes sound precedent let alone a tradition of the Senate. Democrats in the Senate, however, are pretending otherwise.
In response to President Donald Trump’s nomination of Neil Gorsuch, Dick Durbin (D-IL) said, the nominee should “meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama’s choices.” In a similar vein, Senate Minority Leader Chuck Schumer said, “…Sixty votes is a bar that was met by each of President Obama’s nominees. At the time, there was no need for a cloture vote, because we knew that each of them would garner over 60 votes.” These statements suggest that a judicial filibuster is quite normal in the Supreme Court nomination process and that the 60 votes needed to invoke cloture (the procedure that can end a filibuster) are “the standard” in the Senate.
Despite Durbin and Schumer’s rhetoric, history is not on their side. In over 220 years of Senate tradition, there is no record of a filibuster, or a cloture vote, on a Supreme Court nomination until 1968 with the Abe Fortas affair. Out of the 154 nominations of Justices who were first-time nominees to a seat on the court, there have been only 2 cloture votes, which represent just over 1 percent of such nominations. If you include all nominees (including promotions from associate to chief), there are a total of 161 presidential nominations since 1789, and only four, or just over 2 percent, have involved a cloture vote.
The 1968 Abe Fortas affair represents the first, and only, successful filibuster of a Supreme Court justice in Senate history. The Fortas affair was an exceptional case and thus, a bad precedent. First, the Fortas nomination concerned his elevation from associate to chief justice and it occurred when Lyndon Johnson, as a lame duck president, tried to put his close colleague on the court in the waning days of his administration (the cloture vote took place only a month from the election of Richard Nixon). Second, the Fortas filibuster was a bi-partisan effort involving nearly equal Republican and Democratic votes. Its bi-partisan nature was a testament to the ethical concerns over Fortas’ finances and his lack of respect for separation of powers—Fortas frequently sat in on White House strategy sessions as a sitting justice
The next two cloture votes were highly partisan and both involved William Rehnquist. Rehnquist was subjected to cloture votes both in 1971, when Nixon first nominated him to join the Supreme Court, and in 1986, when Reagan sought to elevate him to chief justice. In 1986, Rehnquist’s nomination to chief was never in doubt but Ted Kennedy still led a partisan effort to stall the nomination. Kennedy’s efforts were ended with a bipartisan cloture vote, after which Rehnquist was nominated 65-33.
The 1971 Rehnquist nomination battle was the first time in Senate history where a cloture vote was used to advance a first-time nominee to the high court and the delay was a highly partisan affair led by Senate Democrats. In this case, however, it is not clear if a filibuster actually occurred. One Rehnquist biographer, John Jenkins, characterized the cloture vote as a “preemptive move to invoke cloture even before the Democrats could get a filibuster started.” Even the leader of Rehnquist’s Democratic opposition, Birch Bayh, complained that the lengthy debate was incorrectly characterized as a filibuster.
Thus, the 2006 Samuel Alito nomination represents the only instance in Senate history where an open filibuster attempt targeted a first-time nominee to the Supreme Court. This highly partisan, and failed, filibuster was led by John Kerry and aided and abetted by none other than Dick Durbin and Chuck Schumer. This feeble filibuster effort was supported by only 24 out of 44 Democrats in the Senate and was soundly defeated by a 72-25 cloture vote
In the end, the Democrats are resting the entire filibuster mythology on one highly partisan, and unsuccessful, filibuster of Samuel Alito (which represents less than 1 percent of all nominations since 1789). Such a precedent then is a very thin reed upon which to rest their case, and the reed gets even thinner when one considers that Durbin and Schumer themselves were parties to this novel and partisan attempt at disruption. There is a certain level of audacity in aiding a partisan and failed attempt at changing Senate norms, then later using your own unsuccessful effort as a precedent to further derail time-honored practices.
Furthermore, the venerable Senate norm against filibustering Presidential Supreme Court nominees was so strong it wasn’t even used in the Clarence Thomas nomination. It is remarkable to think that in one of the most heated and controversial nomination battles in history, Democrats, even then, did not resort to a filibuster. Thomas was confirmed with a 52-48 vote which is notably short of what would have been needed for cloture.
In the end, the historical record reveals that 41 senators have never filibustered a first-time nominee to the Supreme Court. Partisan attempts to filibuster Supreme Court nominees represent a radical break from Senate norms and further attempts to normalize the filibuster will only continue to undermine an important constitutional duty of the Senate. It is understandable that Durbin and Schumer want to stop a Republican nominee, but surely they can oppose Gorsuch without callously destroying venerable norms of Senatorial tradition and constitutional culture.
It is certainly possible that in the coming weeks or months, Schumer will lead his party into a highly partisan filibuster of Neil Gorsuch, which in turn, may force the hand of the Republicans to remove that option from the Senate rules. In this scenario, the Republican removal of the filibuster would be a restoration of Senate tradition, not a departure. History shows that the overwhelming norm in the Senate, since 1789, has been to provide “advice and consent” to the president’s Supreme Court nominees via a majority up or down vote; on this point the record is clear, despite what disingenuous and imprudent innovators may suggest.
Darren Patrick Guerra is an Associate Professor of political science at Biola University where he teaches Constitutional Law. His book Perfecting the Constitution was published by Lexington Books in 2013.
