Judicial Filibusters

Michael Gerhardt and Erwin Chemerinsky’s commentary (“Senate’s ‘Nuclear Option,’ ” Dec. 5) opposing a solution to the judicial nomination filibuster crisis misinforms readers about the crisis and its solution. Before the 108th Congress, no majority-supported judicial nomination had been defeated by a filibuster. President Johnson withdrew Abe Fortas’ nomination in 1968 because the vote on invoking cloture, or ending debate, showed it lacked majority support. The votes against cloture were evenly bipartisan; in contrast, the 20 failed cloture votes in the 108th Congress were partisan.

The professors’ claim that “most Republican senators each voted at least once to filibuster one of [President Clinton’s] judicial nominations” is false. The Senate took a cloture vote on one Clinton judicial nominee in the 103rd Congress and three in the 106th. Only 27% of the Republicans serving during those periods voted against cloture at least once, and each of those nominees was confirmed. In contrast, 92% of the Democrats serving in the 108th Congress voted against every one of the 20 cloture motions on judicial nominations, and all of those nominees were defeated. Every Clinton judicial nominee reaching the Senate floor received an up-or-down vote. If treatment of Clinton nominees sets the standard, today’s partisan filibusters should end. The professors’ claim that President Bush enjoys “the highest success rate ever for a president’s judicial nominations” is similarly false. The confirmation rate for Bush’s appeals court nominations, where the filibusters are targeted, is the lowest since at least Franklin Delano Roosevelt.

Sen. Orrin G. Hatch

Chairman, Senate Judiciary Committee

Washington