It looks like the Senate Democrats really snookered Bill Frist. Yesterday there was talk of a potential "compromise" that would have allowed votes on two of Bush's judicial nominees. Even if Frist had consented to the deal, it wouldn't have been much of a compromise by the Democrats, but now they get to look like they're being reasonable and the Republicans are extremists. Furthermore, if the compromise would have gone through, it would have shed more light on the hypocrisy of the Republican arguments against the filibuster, because one of the nominees is the son of the Republican Senator who used a filibuster to derail the confirmation of a Chief Justice of the United States Supreme Court.
To understand why Richard Griffin, David McKeague and Henry Saad haven't been confirmed to the 6th Circuit Court of Appeals, you have to go back to 1997. That's when Bill Clinton, at the beginning his second term, nominated Michigan Court of Appeals Judge Helene White to the 6th Circuit. At the time the Senate still used "blue slips," which would be given to the Senators to fill out and return as a sort of approval for nominees from their state. Democrat Carl Levin returned his blue slip for White, but then-Republican Senator Spencer Abraham held his, thus denying White a hearing before the Judiciary committee. In 1999 Clinton nominated Kathleen McCree-Lewis to another opening on the 6th Circuit, and Abraham again held his blue slip. Finally, in early 2000, Abraham returned his blue slips for both White and McCree-Lewis, but by that point committee chair Orrin Hatch was obstructing appointments, and neither was ever granted a hearing. Their nominations expired when George W. Bush became president.
The Senate, in 2001, abolished the practice of using blue slips on judicial appointments. Eventually Bush nominated two Michigan jurists for the openings White and McCree-Lewis were to fill, and a third jurist to yet another opening. But Levin and his new colleague Debbie Stabenow (who defeated Abraham in 2000) were determined to get White and McCree-Lewis the hearing they were denied, and have since held up the appointments of Griffin, McKeague and Saad by preventing cloture. Griffin and McKeague are conservatives, and neither would be good on the bench. But neither is a total whack-job like Priscilla Owen or a complete corporate tool like William Myers. (Saad is more of a doctrinaire Federalist Society commissar.) So the "offer" made to Frist concerning the 6th District nominees--that the Dems would let McKeague and Griffin be approved as long as Saad was replaced with White or McCree-Lewis--wasn't much of a compromise by Democrats. In fact, it would have been quite a victory, in effect leading to the confirmation of a Clinton appointee more than 4 years after the end of his term.
As I said, Richard Griffin is a fairly standard conservative idealogue, but not crazy like Owen. Furthermore, he's a lackluster thinker, so he's unlikely to write much that would become important precedent. But Griffin is a symbolic figure in the broader fight on the filibuster, because in 1968 his father, Republican Senator Robert Griffin of Michigan, used the filibuster to scuttle Lyndon Johnson's nomination of Justice Abe Fortas to Chief Justice of the Supreme Court.
For our history lesson, let's look at this from American Enterprise Institute fellow and Congressional scholar Norm Ornstein:
Time for a history lesson, boys and girls. The lesson is about the filibuster, and in particular about the filibuster against the nomination of Abe Fortas to be chief justice of the Supreme Court in 1968. The lesson is precipitated by Sen. Orrin Hatch’s (R-Utah) letter to Roll Call last Monday.
First, let us look at the basics of what happened in 1968. On June 13 that year, Chief Justice Earl Warren informed President Lyndon Johnson of his intention to retire, subject to the confirmation of his successor. Two weeks later, LBJ nominated Associate Justice Abe Fortas for the post, also nominating Judge Homer Thornberry of Texas to fill Fortas’ seat on the court. Before his confirmation to the court earlier in Johnson’s presidency, Fortas had been one of Johnson’s closest friends and advisers.
As soon as the nomination was made, sharp opposition arose, driven especially by Sen. Robert Griffin (R-Mich). He challenged the legality of a nomination when there was no vacancy, and accused Johnson of “cronyism.” Other Republicans joined in the effort, which also was driven by the fact that the vacancy occurred late in the presidential term. Many Republicans saw a benefit in waiting until after the election to confirm a new justice, on the hope that GOP nominee Richard Nixon would win in November.
Whatever the motives, as hearings on the Fortas nomination proceeded during the summer, more questions arose about his ethics and his continued involvement, while on the court, in White House political matters. Other opposition, including from several Southern Democrats, built because of Fortas’s left-of-center ideology. But at the time, it was clear that Fortas had majority support in the Democratic Senate, and it was equally clear that Griffin, to prevail, would filibuster.
During the hearings, Griffin was challenged by Democrat George Smathers of Florida on his intention to filibuster the nomination, saying it would prevent the Senate from fulfilling its constitutional advise-and-consent duties. Griffin angrily responded that presidents did not have the sole authority in this area. “He’s only got half the power, he said. “We’ve got the other half and it’s time we asserted ourselves.”
When the nomination came up on the Senate floor in late September, a filibuster ensued. After five days of extended debate, there was a vote on a cloture motion. It failed, 45-43 with 59 votes (two-thirds of those present and voting) needed to pass it. The next day, Fortas withdrew. Johnson termed the behavior of the Senate “tragic.”
At its heart, Hatch’s recent letter suggested a sharp difference between how Fortas was treated (primarily by Republicans) and how appeals court nominees have been treated by Democrats in the past two years--all part of an effort to boost the idea of declaring filibusters against judicial nominees unconstitutional on their face.
The argument that Hatch makes, first articulated by former White House Counsel C. Boyden Gray, is essentially that there was no real filibuster against Fortas, because he didn’t have the votes to get confirmed in the end. I must confess, I find the distinction between “majority-supported filibusters” and “non-majority-supported filibusters” to be, shall we say, a strain.
The logic that Gray has used--trying to suggest that in the public statements of Senators on Fortas, a minority offered support--is flawed. Why filibuster if you have the votes to block a nomination? Besides, I am waiting for someone to show me where in Rule XXII it makes any distinction between filibusters that have majority support or lack it.
The delay caused by the filibuster in 1968 did allow time for opposition to Fortas to build, to a point where Johnson withdrew the nomination. But if Republicans were confident that Fortas would fail on a vote, they would have allowed the vote. And of course, to argue that a filibuster is not a filibuster--or to argue that one is legitimate when others are not because there was not a majority for the nominee in the first place--is like arguing, “Yes, I shot him, but I can’t be charged with murder because he would have died of cancer anyhow.”
In any event, the best way to interpret the actions of Senators in 1968 is to look at what they said then--in particular, what was said by Griffin, who was not just some crazy maverick but a card-carrying member of the Republican Senate establishment (and subsequently Republican Whip in the Senate). So here are a few quotes from Griffin on the Senate floor from that September debate:
“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. . . .
“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 one’s 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
[Ornstein criticized Gray's logic, but there was a deeper problem with Gray's argument, one discovered by Kagro X: it was dishonest.] Griffin's reasons for opposing Fortas weren't all that principled; at heart, he and the Senators who supported his filibuster--mostly Republicans, with a smattering of conservative Southern Democrats--opposed Fortas because he was too liberal, and because they figured (correctly) that they could bottle things up long enough that the appointment wouldn't need to be filled until after Johnson's term ended. Fortas remained an associate justice for a while, and Richard Nixon nominated Warren Burger to replace Earl Warren as Chief Justice. But his statements, as cited by Ornstein, make it clear that Robert Griffin strongly supported the filibuster. How appropriate that the Republicans like C. Boyden Gray are now forced to twist the historical record to try to convince people that the last Senator to lead a filibuster really didn't filibuster Abe Fortas, and how appropriate that Robert Griffin's own words and actions are now being used to justify denying a lifetime judicial appointment to his own son. One final note. In 1978, incumbent Republican Senator Robert Griffin lost his bid for reelection when he was defeated by the president of the Detroit City Council. The name of the Democratic candidate who defeated Robert Griffin? Carl Levin.
Griffin's reasons for opposing Fortas weren't all that principled; at heart, he and the Senators who supported his filibuster--mostly Republicans, with a smattering of conservative Southern Democrats--opposed Fortas because he was too liberal, and because they figured (correctly) that they could bottle things up long enough that the appointment wouldn't need to be filled until after Johnson's term ended. Fortas remained an associate justice for a while, and Richard Nixon nominated Warren Burger to replace Earl Warren as Chief Justice. But his statements, as cited by Ornstein, make it clear that Robert Griffin strongly supported the filibuster. How appropriate that the Republicans like C. Boyden Gray are now forced to twist the historical record to try to convince people that the last Senator to lead a filibuster really didn't filibuster Abe Fortas, and how appropriate that Robert Griffin's own words and actions are now being used to justify denying a lifetime judicial appointment to his own son.
One final note. In 1978, incumbent Republican Senator Robert Griffin lost his bid for reelection when he was defeated by the president of the Detroit City Council. The name of the Democratic candidate who defeated Robert Griffin? Carl Levin.