The GOP’s Nixonian Filibuster of Another Obama Judicial Nominee

It happened Tuesday evening, November 12, 2013.  Senate Republicans, who believe there should be no more judges—particularly, judges selected by a Democratic president—on the United States Court of Appeals for the District of Columbia, refused to end a filibuster against the nomination of highly-qualified Georgetown law professor Cornelia “Nina” Pillard to a seat on that court. This was the second nominee by President Obama to that court to be blocked by a filibuster in the last two weeks, and the fourth nominee to be denied a federal Circuit Court seat by a GOP-launched filibuster.

I first read about this shameless abuse of the filibuster to block another Obama nomination in an account by Washington Post congressional reporter Paul Kane, who noted that Professor Nina Pillard had been caught in the latest “confirmation war” on Capitol Hill, and proceeded to look at how this war started. This is, in fact, a pure Nixonian technique, not to mention a standard contemporary GOP procedure.

Nixon Started Confirmation Filibusters

“[T]here is nothing particularly new about these nominations battles,” Kane reported. “Both sides have been at war for years over the federal appellate courts in general, and the D.C. Circuit in particular.  It has been going on so long that it is difficult to discern who fired the first shot and when.”

Kane further reported: “The Pillard vote comes 45 years after the first filibuster of a judicial nominee, the failed effort by President Lyndon B. Johnson to elevate his friend, Justice Abe Fortas, to chief justice of the United States. That, however, was a rare bipartisan filibuster, in which Southern Democrats, including Sen. Richard Russell (Ga.), joined Northern Republicans, such as Senate Minority Leader Everett Dirksen (Ill.), in rejecting Fortas.”

Well, that is true, as far as it goes. But it was not really a “bipartisan” filibuster.  It was, in fact, a Republican-mounted filibuster that was undertaken at the request of 1968 Republican presidential candidate Richard Nixon. While Republicans have long tried to camouflage this nasty Nixonian precedent—which started the obstructionism that has ricocheted through the confirmation process for almost a half-century now—in fact, it was my former boss and his GOP enablers.  Drawing on historical material that I first reported in my book, The Rehnquist Choice (2001), let me explain.

The First GOP Confirmation Filibuster, In 1968 

During the 1968 campaign, GOP presidential candidate Nixon was unhappy when outgoing President Lyndon Johnson decided to appoint his longtime friend and adviser, Abe Fortas, whom he had already made an Associate Justice, to fill the seat that Chief Justice Earl Warren announced that he was vacating upon confirmation of his successor.  (Nixon suspected Warren realized he was going to win the 1968 election, and Warren did not want to give Nixon, as president, the opportunity to fill his seat and overturn his legacy.)

Nixon did not make Earl Warren a campaign issue in 1968.  Rather, he remained above the fray publicly, while making judicial appointments to the federal courts very much a campaign issue.  It was the first time a presidential candidate had emphasized the importance of a president’s role in shaping the federal judiciary.

Privately, Nixon sent word through campaign aide (and later White House counsel) John Ehrlichman to Senator Robert Griffin (R-MI) to launch an attack against Fortas in order to block his elevation to the post of chief justice.  The filibuster was initially used to slow down the process so that they could dig up information on Fortas’s close relationship with President Johnson.  But Griffin’s Republican colleague on the Judiciary Committee, Senate Minority Leader Everett Dirksen (R-IL), thought the approach weak, because past presidents had appointed cronies to the Court, as did Presidents Abraham Lincoln, who appointed his campaign manager, David Davis; Harry Truman, who appointed his private adviser Fred Vinson, and John Kennedy, who sent his close lieutenant Byron White to the High Court.

During the Fortas filibuster, Republicans enlisted conservative Southern Democrats—who were also being wooed by Nixon’s Southern Strategy to vote Republican, and would soon become Republicans.  The Southerners went after Fortas for his rulings in obscenity cases while seated as an Associate Justice. Then the Republicans got lucky, when Senator Griffin received an anonymous tip that Fortas was teaching a course at American University Law School, which had raised a hefty sum from businessmen to underwrite Fortas’s salary.  While it was not unusual at the time for Supreme Court justices to receive outside money, the Republicans did a good job of making it appear that Fortas was on the take. With the support of Southern conservatives, the Republicans filibuster succeeded in blocking Fortas from the appointment.

Not only did Nixon push Senate Republicans to use the filibuster to block judicial appointments, but he also focused on packing the federal judiciary, thus starting that effort by the Republicans which has continued on to this day.  Frankly, Democrats have never played this game well, so Republicans have succeeded in dominating the federal judiciary.  Nor do I expect Democrats to retaliate for this latest use of the filibuster to block an Obama appointment, notwithstanding that it has become standard operating procedure to block the president’s constitutional right, if not his obligation, to fill executive and judicial posts.

Do Not Expect Democrats to Retaliate Until…

Back in June, when President Obama nominated Nina Pillard along with others to the federal bench, he all but dared the Senate to filibuster her nomination.  Republicans have gleefully taken the dare. It is part of their general effort to obstruct everything Obama pursues.  And it is working.  This is merely another example. There should have been an immediate outcry from the Obama White House. But there was none.

Following the Pillard obstruction, the Huffington Post gathered the names (along with brief bios and pictures) of all the Obama nominees who have been blocked by Senate Republicans—TWENTY OF THEM, no less.  What the GOP is doing to this Democratic president is unprecedented.  It is stunning that they are getting away with it. They have found Obama’s weakness: He has been unable to provide strong, sustained, and decisive leadership.

I am sad to report that it appears that the Senate Democrats are as gutless in dealing with the Senate Republicans, as the Senate Republicans are outrageous in dealing with the Senate Democrats. Frankly, I do not get it.  But, from this distance, it appears that the Senate Democrats are not being pushed by their president, nor provided with political cover when they need it.  Oh sure, Democrats talk tough about retaliation, but they never do anything more than rattle their swords.  Republicans talk tough, of course, but they do exactly what they say they will do: They pull their swords time and again; cut Democrats off at the knees; and watch them limp back into silence.

I’ll tell you what will change all this wimpy Senate Democratic behavior.  Put Hillary Clinton or Elizabeth Warren in the White House, and either of these ladies will demand spine in the Senate Democrats, and give them the political motive and cover to get the job done for the White House.  (Incidentally, no one saw Nancy Pelosi ever shrink from dealing with GOP obstructionism, or the Blue Dog Democrats in her caucus, when she was running the House of Representatives.)

Meanwhile, expect the Republicans will continue to cut the legs from under Democrats at every opportunity. The rest of us must hope that the Democrats don’t bleed to death while awaiting strong leadership.  Republicans do not need numbers or popular support to govern by obstructionism or extortion.  While their GOP policies may not help any but their own, no one can say that they don’t have the will to relentlessly pursue their goals.  For Republicans, the means always justify the ends they seek to get their way.