Fortas is on point, but Paez is even better

Charles Babington had a good piece today debunking a central claim of Republicans who rail against Dem filibusters against a few Bush judicial nominees: the “unprecedented” nature of it all. It’s a solid article, but I think there’s a better comparison available.

Judiciary Committee Chairman Arlen Specter (R-Pa.) told his panel this month that the judicial battles have escalated, “with the filibuster being employed for the first time in the history of the Republic.” Sen. Orrin G. Hatch (R-Utah) said in a Senate speech last week, “The crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved.”

Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson’s nomination of Abe Fortas to be chief justice of the United States. “Fortas Debate Opens with a Filibuster,” a Page One Washington Post story declared on Sept. 26, 1968. It said, “A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice.”

A New York Times story that day said Fortas’s opponents “began a historic filibuster today.” As the debate dragged on for four days, news accounts consistently described it as a full-blown filibuster intended to prevent Fortas’s confirmation from reaching the floor, where a simple-majority vote would have decided the question.

All of this, to be sure, is true and helpful. Judicial filibusters are hardly unusual in a historical context, and as luck would have it, they have been used by Republicans on multiple occasions. The GOP can gripe, but the Dems’ tactics are hardly unique.

While the Fortas filibuster is worth keeping in mind, it’s not exactly an apple-apple comparison with Bush’s nominees (at least not yet). Fortas was already on the Supreme Court when Republicans began, to use their term, “obstructing” the nomination. Moreover, it’s harder to accuse contemporary Republicans of hypocrisy with this example since none of the current lawmakers in the Senate were there in 1968.

Which is why I’m far more inclined to use the Richard Paez example.

Sure, the Fortas example establishes an historical GOP precedent for today’s Dem filibusters, but the fact that Bill Frist personally supported filibustering a Clinton judicial nominee is the example that should effectively end this debate.

Documents obtained by American Progress show Frist participated in an effort to block one of Bill Clinton’s judicial nominees via filibuster, then lied about it…. Frist engaged in the same behavior he is now condemning.

[…]

In 1996 Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paez’s nomination for more than four years, culminating in an attempted filibuster on March 8, 2000. Bill Frist was among those who voted to filibuster Paez.

Frist was directly confronted with this vote by Bob Schieffer on Face the Nation (11/21/04). Schieffer said “Senator, a group called The American Progress Action Fund sent me a question to ask you. And here’s what it says: “Senator Frist, if you oppose the use of the filibuster for judicial nominations, why did you vote to filibuster Judge Richard Paez when President Clinton nominated him to the 9th Circuit?'” Frist replied “Filibuster, cloture, it gets confusing — as a scheduling or to get more information is legitimate. But no to kill nominees.”

But American Progress has obtained a document that proves Frist was not, as he suggested, voting to filibuster Paez for scheduling purposes or to get more information. He voted to filibuster Paez for the very reason he said was illegitimate — to block Paez’s nomination indefinitely.

On March 9, 2000, Former Senator Bob Smith (R-NH) issued a press release describing the intent of the Paez filibuster vote the day before. The release says Senator Smith “built a coalition of several moderate and conservative Senators in an effort to block” Paez’s nomination. Frist was a part of that coalition. Smith did not organize the filibuster to get more information on Paez (after all his nomination had been pending for four years). He organized the filibuster because he had already decided Paez was “out of the mainstream of political though and…should [not] be on the court.”

It seems to me the Paez example is point, set, match. Frist is wrong when he complains that judicial filibusters are unprecedented, but worse, he’s an obvious hypocrite, trying to prohibit the very tactics he personally embraced under Clinton. To hear Frist tell it, when Dems filibuster, they’re destroying the Senate; when he does the exact same thing, he’s well within his rights as a senator.

It’s the kind of argument only congressional Republicans could love.