First President in US History to Have Voted to Filibuster a Supreme Court Nominee Now Hopes for Clean Process

By Evan Harris

May 30, 2009 1:08pm

President Obama's expressed hope today in his weekly address "that we can avoid the political posturing and ideological brinksmanship that has bogged down this (Supreme Court nomination) process, and Congress, in the past" runs against another historical first for the 44th president: his unique role in history as the first US President to have ever voted to filibuster a Supreme Court nominee.

So while there is little indication Republicans intend to filibuster President Obama's nominee for the Supreme Court, Judge Sonia Sotomayor, the GOP will likely invoke the President's unique history whenever he calls their tactics into question.

In January 2006, then-Sen. Obama joined 24 colleagues in a futile effort led by Sen. John Kerry, D-Mass., to filibuster the Supreme Court nomination of now-Justice Samuel Alito.

On January 29, 2006, Mr. Obama told George Stephanopulos on "This Week" that he would "be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly."

Mr. Obama did seem to express some reserve about using the filibuster process, which in common parlance refers to a procedural Senate maneuver requiring 60 votes to end debate and proceed to a vote.

"I think that the Democrats have to do a much better job in making their case on these issues," then-Sen. Obama said. "These last-minute efforts using procedural maneuvers inside the Beltway, I think, has been the wrong way of going about it, and we need to recognize because Judge Alito will be confirmed that if we're going to oppose a nominee that we've got to persuade the American people that, in fact, their values are at stake and frankly I'm not sure that we've successfully done that."

He added that "there is an over-reliance on the part of Democrats for procedural maneuvers and mechanisms to block the president instead of proactively going out to the American people and talking about the values that we care about. And, you know, there's one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect our values and that's to win elections."

It does not appear that a filibuster will be attempted against Sotomayor.

The ranking Republican on the Senate Judiciary Committee, Sen. Jeff Sessions, R-Ala., was among 28 Republicans who voted against Sotomayor's ascension to the Court of Appeals in 1998.

But he told CNN this week, "I don't sense a filibuster in the works."

"The nominee has serious problems," Sessions said. "But I would think that we would all have a good hearing, take our time, and do it right. And then the senators cast their vote up or down based on whether or not they think this is the kind of judge that should be on the court."

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The first attempt to filibuster a Supreme Court nominee in Senate history was led by Republican Senators against President Johnson's nominee to be Chief Justice, Associate Justice Abe Fortas, in 1968.  Fifty nine votes — 2/3rds of those present — were needed to proceed to a full vote on Fortas. The vote was 45-43. Cloture was not invoked. The next day, Fortas withdrew.

The Senate historian calls this "the first filibuster in Senate history on a Supreme Court nomination."

Other than in 1986 — when Sen. Ted Kennedy, D-Mass., contemplated a short-lived filibuster attempt against President Reagan's move to promote William Rehnquist from Associate to Chief Justice — there was no other attempt to filibuster a Supreme Court nomination until the one against Alito.

Some say that the first Supreme Court nominee to have been filibustered was President Rutherford B. Hayes's nominee Sen. Stanley Matthews, R-Ohio, in 1881. But that's not technically accurate: the Senate Judiciary Committee failed to act on Matthews' nomination during the end of Hayes' term, and incoming President James Garfield renominated him. He was confirmed by a vote of 24-23.

"Trying to make a distinction about the procedures used to deny a nominee confirmation is a distinction without a difference," Sen. Dianne Feinstein, D-Calif., said in 2005, describing the Matthews incident as "the first recorded instance in which the filibuster was clearly and unambiguously deployed to defeat a judicial nomination."

Sen. Orrin Hatch, R-Utah, said that Matthews' delay counts as a filibuster "only if, as Humpty Dumpty put it, the word filibuster means whatever you choose it to mean." Hatch said the "claim is incomprehensible. There was no cloture vote on the Matthews nomination for a very simple reason: our cloture rule would not even exist for another 36 years. Nor were 60 votes needed, even for confirmation, since the Senate contained only 76 members."

Only 16 presidents served in the Senate so not many had the opportunity to vote on Supreme Court nominations.

Of those who served in the Senate, James Monroe, John Quincy Adams, Andrew Jackson, Martin Van Buren, William Henry Harrison, John Tyler, James Buchanan, Andrew Johnson, and Benjamin Harrison served before the current Senate rules on achieving "cloture" — shutting off debate and proceeding to the up-or-down majority vote — were created in 1917. (The rules then required a two-thirds vote. They currently require 60.)

Significantly, cloture rules did not apply to nominations until 1949. So until then, a nominee could be filibustered by the classic "Mr. Smith Goes to Washington" way of talking a nomination away, but not with a vote by the body of the Senate. Warren G. Harding, who served in the Senate from 1915 to 1921, does not appear to have ever filibustered a Supreme Court nominee.

Of the remaining four Presidents who had served as senators — Harry S Truman, John F. Kennedy, Richard M. Nixon, and Mr. Obama — Mr. Obama is the only one to have been serving in the Senate during an attempt to filibuster a Supreme Court nominee.

-jpt

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