Norman J. Ornstein has written an excellent piece (hat tip: David
) in support of judicial filibustering by the Senate: Ghost of Abe Fortas Hangs over Discussion of Judicial Filibusters
. As a historical example, he points to the filibustering of one of President Lyndon Johnson's nominees by the Republicans
. Senator Robert Griffin (R-Mich) led the charge, and his understanding of the appropriate
function of the filibuster as a brake is very good. Here are some quotes from him, via the article:
It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the Court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote. . . .
POSTED BY THE GENERAL AT 8:41 AM
As more senior members of this body know so well, the Senate works its will in various ways. In the situation confronting us now, there are good and sufficient reasons for refusing to take up the nomination. . . .
If ever there is a time when all Senators should be extremely reluctant to shut off debate, it is when the Senate debates a Supreme Court nomination. If Congress makes a mistake in the enactment of legislation, it can always return to the subject matter and correct the error at a later date. But when a lifetime appointment to the Supreme Court is confirmed by the Senate, the nominee is not answerable thereafter to the Senate or to the people, and an error cannot be easily remedied. . . .
Whatever ones view may be concerning the practical effect of Senate rules with respect to the enactment of legislation, there are strong reasons for commending them in the case of a nomination to the Supreme Court.