When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.
On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."
As you can see, Fortas was recommended by the committee but failed to get an up or down vote.
I would also refer you to Cboldt's comments just above these posts. Cboldt is correct on his first two points. However his last point about a "duty" isn't there. If there is a duty, it is that the Senate should consider whether to exercise the power to ratify the treaty (as in Kyoto, it did not), trying the impeachment or even if it wants to have a full vote on judicial appointees. The Senate has the power and the Senate chooses whether or not to exercise that power. The rules of the Senate allow a filibuster to be clotured with 60 votes. Remember that at the time of Abe Fortas' nomination, it was 66 votes. The Senate changed the requirement, but did not abolish the filibuster for judicial nominees or any other issue. (Granted, the Fortas issue was not why the requirement was changed to 60.)
While I would also like to see these nominees confirmed by the full Senate, I don't advocate "throwing the baby out with the bathwater". This issue has cut both ways in the past as each party controlled the Senate. The filibuster served conservatives well during the Fortas nomination and it now serves the liberals. On the other hand, Republicans also have used their Senate privilege of placing a hold on Clinton nominees, again, something not specified in the constitution. So the issue has benefited and hurt both sides.
The only true and unarguable answer is to elect 60 GOP Senators.
But the Senate DID vote on the Kyoto treaty (it failed, miserably), and and far as I know, it has brought to trial every article of impeachment brought to it.
My point is that there is never any discussion of whether or not the Senate can stonewall these decisions, yet the same Constitutional construct is there in each case. That is, the word DUTY does not appear. I assert that duty is implied. When the Senate refuses to exercise its judgement in treaties and nominees, it is stepping on the president's toes.
Obviously, the point is arguable. We are arguing it. ;-) You hold that I am wrong, that the Senate has no duty to try an article of impeachment, that it has no duty to vote at all when presented with a treaty, and that it has no duty to vote when presented with a nominee. I hold the opposite position.
First off, my apologies for my last remark in my previous post - I get passionate about this whole filibuster thing, view it as a stalling tactic which the dhimmis have successfully employed. Between the enablement of this twisting of the Constitution by the left, the blessing said tactic has recieved from the media, and the general lack of backbone by the republican majority, I don't know which gets me pissed off more.
For BiB: though I cannot speak for all events involving nominees, I know there were many clinton nominees posted in the very latter part of his administration - pubby senators felt he was trying to ramrod some quick ones ala his 11th hour mass pardoning of dubious characters, and rightly held them up. To President Bush's credit, he did forward some of those qualified nominees in his first batch, along with (of course) nominees of a more conservative leaning. The dhimmis (remember, at this point in 2001 there was no republican majority, said fact reflected in committee membership as well...) quickly passed those democrat nominees, then held up the conservative ones.
On the Senate website, I confess that the distinction is blurred on Fortas... were the floor discussions against him part of the talking period prior to vote? If so, how then could it be called a filibuster? Seems to me, to have been a filibuster means it would have 1) gone to the Senate floor for discussion, pro & con; 2) been posited for a vote; at which point 3) the opposition would then have filibustered to prevent the actual vote. Fortas was shot down when it became evident he did not have the support needed to be voted in, therefore I would think he was removed during my ad-hoc step (1), above.
This is not an issue about the filibuster per se; I believe to address this under the same parachute obfuscates the main point; that a filibuster has never:
A) been used on judicial nominees who otherwise have been favorably forwarded by the committee; who
B) would, if the senate were to vote, almost certainly be elected to the bench; or for that matter...
C) been a filibuster in name only, whereby the minority party is not required to "hold the floor" in discussion.
True, the Constitution does not specify filibuster on judges... or anything else. The filibuster is an artifice which falls under Senate Rules.
But those rules must perforce be based on Constitutional ethics - could the senate make a rule that states all decisions must be unanimous, effectively rendering that body into the 21st century incarnation of the Polish Diet? We know full well what paralysis would ensue from such folly, and Poland can tell you the dangers of giving one vote effective hindrance upon the body politic can do to a Nation's survival.
Advice and Consent does not mean 41 can prevent the other 59 from exercising thier Constitutional obligations... as Robert KKK Byrd so famously (if certainly not covered by MSM) described recently when he stated "the Senate has voted against them" (the nominees). The Senate has NOT voted, and you, Sen Byrd, are Out of Order!
For that matter, I've never understood why a point of order was not posited from the very first - the Senate would then have had to decide whether this filibuster was legit or not, and I believe the vote would have been against it.
But, as I mentioned before regarding my angst against wuss-pubby senators... if frogs had handguns, birds wouldn't f*"k with them...