The Filibuster Formula

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Judicial nominee Miguel Estrada is sworn in at his confirmation hearing

The Senate returned Monday from a two-week midwinter recess and immediately ran into two sticky dilemmas: 1) explaining to the rest of America why we don't get congressional holidays, and 2) a judicial nomination stymied by an old-fashioned filibuster.

The political fate of Miguel Estrada, nominated by President Bush to the U.S. Court of Appeals, is currently very much in question, thanks to a filibuster by increasingly immovable Senate Democrats, who refuse to allow Estrada's name to come up for a vote, in part because the White House will not release key documents they believe will reveal Estrada's right-wing activism. The would-be judge has not betrayed much of anything in the course of his controversial nomination hearings; Democrats say Estrada, a 42-year-old lawyer, lacks the necessary experience and record to assume the lifelong post presiding over a federal appeals court, while Republicans argue he should not be required to reveal his own leanings in order to take the bench.

The Democrats wasted no time hunkering down into traditional filibuster mode, in which one party holds the floor as long as they can in order to prevent a vote on a nominee or issue. Sixty votes are required to stop a filibuster. By Wednesday, February, 12th, less than 36 hours after Estrada's name came to the floor, the always-garrulous Sen. Robert Byrd of West Virginia was regaling his colleagues with lengthy (and, yes, totally irrelevant) tales of his long-lost youth. It was a scene that brought to mind some of the chamber's famous filibusters.

The history of the filibuster
The word "filibuster" comes from the Dutch word meaning "pirate." Members of the U.S. Senate have pirated debate for as long as the institution has existed. Initially, House members were permitted to filibuster as well, but their growing numbers soon made the practice inadvisable. In the Senate, unlimited debate was permitted until 1917, when President Woodrow Wilson suggested the Senate adopt a new rule: a two-thirds vote (67 members) would close down ("cloture") a filibuster. In 1975, the required vote count was reduced to three-fifths (or 60 members).

The first modern filibuster
Although the practice has been popular in the Senate since the 19th century, it wasn't until1919 that the Senate engaged in the modern terms of filibuster warfare. When a filibuster held up a vote on the Treaty of Versailles, the Senate invoked a two-thirds vote to bring the matter to the floor.

Famous filibusters

  • In 1841, Henry Clay proposed a bank bill that was met with great disdain by his Democratic colleagues, who launched a filibuster.
  • Until his departure from the Senate in 1932, Louisiana's Huey Long spent many hours — 15 hours, on one occasion — pontificating on nothing in particular (he was famous for bringing recipes for oyster dishes to read). He used the practice to protest policies he considered unfair to the poor.
  • Strom Thurmond's last stand against civil rights legislation took the form of a 24-hour long monologue in 1957, which set the record (still standing) for longest individual filibuster. The previous record (22 hours) was held by Wayne Morse, during a 1953 filibuster against Tidelands Oil legislation.
  • In 1968, Republicans and Southern Democrats filibustered Abe Fortas, Lyndon Johnson's nominee to replace retiring Chief Justice Earl Warren. Fortas, who was considered too liberal by many in the Senate, was eventually withdrawn from consideration for the leadership post.

    Meanwhile, it's not clear how long Estrada's nomination will stay on the floor, but neither party looks ready to back down. In his radio address last Saturday, President Bush accused Senate Democrats of willfully stalling his nominee "while they search in vain for a reason to reject him."