Do you know why Senate Republicans rarely resorted to the filibuster to block Clinton administration court nominees? If you do, congratulations: you’re better informed than the nation’s press, which apparently has no clue regarding the degree to which Republicans obstructed Clinton court nominees—including an attempted filibuster lead by former Senator Bob Smith and supported by one Bill Frist—or the tools they used to block the nominations.

The answer to the lack of filibusters is the obvious one: Republicans didn’t filibuster because they didn’t have to. They were able to stall Clinton nominees—as long as four years in some instances—because they were in the majority and because Senate rules, inaugurated during the 1950′s and in effect until the Republican majority defenstrated them after the GOP won the White House in 2000, permitted anonymous holds on nominations and allowed a single Senator from the nominee’s home state, via the “blue slip,” an evaluation form given to the home state senators, to prevent the nominee from getting a hearing. On several occasions Republicans simply refused to schedule hearings for Clinton nominees, and on others refused to schedule votes for nominees who were lucky enough to get a hearing.

To get an idea of how effective the Republicans were in blocking Clinton nominees, a look at the last two years alone is instructive. The Citizens’ Commission on Civil Rights published a report which in part addresses the judicial confirmation process during the Clinton years.

Overall, the 1999–2000 period was characterized by significant delay and inaction by the Senate on many Clinton nominees. As discussed above, 41 nominations made by the President during this period were never acted upon, more than twice the number as during the previous two years. Specifically, the Senate confirmed only 69% of the President’s district court nominees during this period, compared with 84% during 1997–98, and confirmed only about 40% of his court of appeals nominees, a significant drop from the 68% two years earlier. One report estimates that, overall, more than 35% of President Clinton’s nominees to the appellate courts were not approved, compared with less than 15% under President
Reagan.

For example, although it took 77 to 81 days for an appeals court nominee to receive a hearing during the first Bush Administration and Clinton’s first term, that figure ballooned to 231 days during 1997–98 and even further to 247 days during 1999–2000. As nominations expert Sheldon Goldman and his colleagues put it, a process that had previously been routine for most nominees was “turned into an obstacle course fueled by partisan and ideological divisions to which only a minority of nominees were immune.” Indeed, current White House counsel [now Attorney General] Alberto Gonzalez recently conceded that the “conduct of the Republican Senators” in delaying nominees for as long as four years “was wrong.”

Do you suppose it would be helpful were the press to provide this sort of context for the current dispute? I think probably so, even if it’s just a sentence or two in every story on the filibuster fight to the effect that using other tools, Republicans blocked many more Clinton nominees than Democrats have Bush ones, and those tools no longer exist because Republicans shit-canned them to prevent Democrats from using them.

I also think a little instruction on the history of the right-wing&mdash’once the radical right wing, but now the mainstream one—assault upon the courts would be in order, beginning perhaps with the “Impeach Earl Warren” campaign following his opinion in Brown v. Board of Education. And it might be worth pointing out that throughout the fifty-year history of this concerted right-wing attack upon the courts, the most aggravating decisions have been ones recognizing the rights of persecuted minorities and women.

In other words, James Dobson and his pet Congressmonkey, Bill Frist, aren’t upset because anyone is attacking Christians; they’re upset because their particular brand of Christianity is being prevented from attacking others. They join a long roster of distinguished racists, homophobes and separatists who believe their rights are being trampled when other people’s rights are formally recognized.

But you won’t hear about that from the press. They can’t even be bothered to remember who popularized the term “nuclear option” to describe eliminating the filibuster.

For a broad overview of the history of attacks on the judiciary, read this outstanding paper from the Leadership Conference on Civil Rights.

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