No, There Is No Tradition of Filibustering Supreme Court Nominees

Contrary to recent mythology, there has never been a Senate tradition of filibustering nominees to the Supreme Court. Only once in history has there been a clear attempt to filibuster a first-time nominee to the Supreme Court, as in the case of the 2006 Samuel Alito confirmation. This recent, and lone, occurrence hardly constitutes sound precedent let alone a tradition of the Senate. Democrats in the Senate, however, are pretending otherwise.

In response to President Donald Trump's nomination of Neil Gorsuch, Dick Durbin (D-IL) said, the nominee should "meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama's choices." In a similar vein, Senate Minority Leader Chuck Schumer said, "…Sixty votes is a bar that was met by each of President Obama's nominees. At the time, there was no need for a cloture vote, because we knew that each of them would garner over 60 votes." These statements suggest that a judicial filibuster is quite normal in the Supreme Court nomination process and that the 60 votes needed to invoke cloture (the procedure that can end a filibuster) are "the standard" in the Senate.

Despite Durbin and Schumer's rhetoric, history is not on their side. In over 220 years of Senate tradition, there is no record of a filibuster, or a cloture vote, on a Supreme Court nomination until 1968 with the Abe Fortas affair. Out of the 154 nominations of Justices who were first-time nominees to a seat on the court, there have been only 2 cloture votes, which represent just over 1 percent of such nominations. If you include all nominees (including promotions from associate to chief), there are a total of 161 presidential nominations since 1789, and only four, or just over 2 percent, have involved a cloture vote.

The 1968 Abe Fortas affair represents the first, and only, successful filibuster of a Supreme Court justice in Senate history. The Fortas affair was an exceptional case and thus, a bad precedent. First, the Fortas nomination concerned his elevation from associate to chief justice and it occurred when Lyndon Johnson, as a lame duck president, tried to put his close colleague on the court in the waning days of his administration (the cloture vote took place only a month from the election of Richard Nixon). Second, the Fortas filibuster was a bi-partisan effort involving nearly equal Republican and Democratic votes. Its bi-partisan nature was a testament to the ethical concerns over Fortas' finances and his lack of respect for separation of powers—Fortas frequently sat in on White House strategy sessions as a sitting justice

The next two cloture votes were highly partisan and both involved William Rehnquist. Rehnquist was subjected to cloture votes both in 1971, when Nixon first nominated him to join the Supreme Court, and in 1986, when Reagan sought to elevate him to chief justice. In 1986, Rehnquist's nomination to chief was never in doubt but Ted Kennedy still led a partisan effort to stall the nomination. Kennedy's efforts were ended with a bipartisan cloture vote, after which Rehnquist was nominated 65-33.