Democrats point to a filibuster of Lyndon Baines Johnson?s 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today?s filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn?t have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.
One Democrat who worried it wouldn?t be was Sen. Mike Mansfield. He feared that a minority of senators would ?frustrate the Senate?s constitutional obligation on the question of nominations?: ?In the past the Senate has discussed, debated, at times agonized, but always it has voted on the merits. No senator or group of senators has ever usurped that constitutional prerogative. This unbroken tradition in my opinion merely reflects on the part of the Senate the distinction heretofore recognized between its constitutional responsibility to confirm or reject a nominee and its role in the enactment of a new and far-reaching legislative proposals.?
Mansfield?s fears were unfounded ? at least for 35 years. Now they have been realized at the hands of an obstructionist Senate Democratic minority. Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition.