It Would Be Difficult To Abolish The Senate But Will The Abuse Of The Filibuster Damage That Body Permanently?

If most DWT readers started their lives after World War II had ended, an awful lot of years went by before there was even one Senate filibuster of a presidential nominee. There were none in Eisenhower's two terms, none before JFK was assassinated, none in Johnson's term and a half, none in Nixon's term and a half, and none in Ford's half term.

Johnson's nomination of Associate Justice Abe Fortas, an inordinately close friend and ally, to be Chief Justice caused a stir on the right. Ironically-- in light of the blatant corporatism of the GOP-- right-wing fanatic Strom Thurmond, claimed that Fortas had accepted speaking fees from business interests and that Fortas might not be objective if any of these businesses came before the Court. The weeklong debate-- an attack led by Republicans and their ConservaDem allies-- wasn't technically a filibuster, but when a vote was held to give Fortas an up or down confirmation vote, he only won it by a narrow 45-43, far short of what he needed if it would have been a formal filibuster/cloture, and he withdrew from consideration, though staying on the Court. (If you do want to count the Fortas debate as a filibuster, it would have been the first in history of a Supreme Court nominee.)

In 1969 Fortas resigned for some unrelated scandal, and Nixon made two of the most inept Supreme Court nominations since a long string of disastrous and unsuccessful nominations by John Tyler in 1844 and 1845. Nixon's first catastrophe was vicious South Carolina racist Clement Haynsworth, who was defeated 55-45, with 17 Republicans joining most of the Democrats to vote him down. Nixon doubled down and managed to find someone even worse, another Southern racist, G. Harrold Carswell, widely considered the stupidest man ever nominated to the Supreme Court. He hated blacks and women, and his primary defender, Nebraska Senator Roman Hruska-- his day's Ben Nelson-- claimed that the fact that Carswell was "mediocre" shouldn't be used against him because mediocre people "are also entitled to a little representation," presumably a little more than just the Nebraska senator. As in the case of Haynsworth, the Senate didn't bother to filibuster Carswell; they just voted him down, 51-45, with 13 Republicans joining most of the Democrats against him. (Two weeks later Carswell resigned his position as a Florida judge to run for the Senate and was soundly defeated in the GOP primary. A few years later he was arrested in a public toilet trying to commit fellatio on an off-duty police officer.) Through it all-- including two other near misses-- Nixon had no filibusters of his nominees. Neither did Ford.

The first president in our lifetimes to face a full-on filibuster against his nominees was Jimmy Carter, who faced two in his one term. Reagan also faced two filibusters over the course of two terms. (His nomination of bizarre right-wing extremist Robert Bork was defeated 58-42 without a filibuster, and his nomination of Douglas Ginsburg was withdrawn without filibuster when it was discovered that he had habitually smoked pot with his college law students.) Bush I had no filibusters against any nominees, but by the time he was defeated by Clinton, the GOP all-obstruction/anti-government ethos had taken form and they filibustered 13 nominees during his two terms. It opened a Pandora's box, and Democrats filibustered 7 nominees during Bush II's two terms. As you can see on the chart above, Obama's first year has resulted in 9 filibusters (with 20 more projected for his first term)!

Yesterday former Republican Majority Leader Bill Frist (TN) admitted the GOP is overusing the filibuster against President Obama. In fact, they filibuster everything besides naming post offices. That's because, regardless of his having won far more robust majorities than any other recent president, radicalized Republicans refuse to recognize him as a legitimate president, largely because of his race. As Rachel Maddow reported earlier in the week, 290 bills already passed by the House are being blocked from even being voted on by the GOP (see video below). This kind of anti-democratic obstructionism makes people wonder if what the British did to defang the House of Lords in 1911 could be done here in the U.S. a century later.




A REMINDER FROM KEN ABOUT THE FILIBUSTER NUMBERS

I'm sure everyone is keeping this in mind, but I just want to note for the record that with the procedural changes instituted at the same time that the filibuster-closing requirement was dropped from two-thirds to three-fifths in 1974, the threat of a filibuster -- assuming you have enough votes to prevent cloture -- is functionally the equivalent of an actual filibuster, though of course there are no statistics I'm aware of for "threatened filibusters." As Howie notes, since the Democrats at least nominally retook control of Congress in the 2006 election, the Republicans have transformed the filibuster from a last to a first resort. The only reason they require for threatening a filibuster is that "We're against it," and the only reason they need to be against it is, "They're FOR it."

Of course the GOP has further broadened its use of the "filibuster threat," which is what a Senate "hold" is supposed to be (the only reason for the Senate majority leader to honor a hold is that the holder is believed to have enough votes to prevent cloture) to cases where they don't have the votes to block cloture, as Howie and I have pointed out in the case of nominations that were "held" by obstructionist senators and when unheld garnered 70 or 80 votes. In fairness, maybe these shouldn't go in the "filibuster" column, because phony holds require the cooperation of the majority leader.

#