On the nuclear<<no, strike that!>>   On the so-called “Constitutional” option :

BLITZER: If the Democrats, Senator Lugar, were to go ahead and use that filibuster rule to try to set back the Bolton nomination, would that be unprecedented? Would that be something Republicans would do if the shoe was on the other foot?

LUGAR: Well, it wouldn’t be unprecedented.     [link to interview]  May 15

Well, Sen. Richard Lugar(R-Ind) SHOULD KNOW.

He was part of 2 FATAL filibusters of Clinton appointees in 1994 and 1995.

You can view the votes of many of the leading lights of the Republican party in the Roll Calls —

Can they hide from their votes?  Scan the roll call records here.

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        Cross-posted at dailykos [Link]
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Fatal filibuster (GOP led) #1 –    Henry FOSTER to be Surgeon General  – June 22, 1995  (head of the US Public Health Service)

Fatal filibuster           #2 –    Sam BROWN for Ambassador rank appointment  – May 25, 1994

Henry Foster  – was defeated by a minority-number of votes in 1995   ——

                           Though 57 members voted to proceed to a vote,
 

                  43 Republican senators nixed it.   Here is the roll call.
 

 

Access to the official roll call listing is found here.


Sens. HATCH, LOTT, then-Majority leader Bob DOLE, ASHCROFT (future attorney general), LUGAR, McConnell (whip), Grassley, Santorum, Warner, McCain, Kyl, Hutchison and others killed the nomination by minority filibuster blocking.

    Henry Foster was very strongly anti-tobacco.

He also did not believe in outlawing abortion, or imposing  forced motherhood.

    Because Foster held these views, a 43-person minority defeated his nomination.

He was blocked by 2 identical filibuster roll-calls.

After the 57/43-vote defeat, the position remained VACANT FOR 3 years.

[John Ashcroft famously led a filibuster against the next candidate, Dr. David Satcher, in 1998 but the nominee finally prevailed.]

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    Similarly, Sam Brown was defeated for Ambassador rank position by filibuster in 1994, 56-42. Brown had supported antiwar protests in the Vietnam era.

    51 Democrats  + 5 Republicans favored shutting down debate to proceed to a vote.

 56 members voted “yea” to close debate, but the nomination was turned down when cloture was denied  (56 -42) .   Here is the roll call of the 42 “nays.”

The official vote record is found   here.

As for JUDICIAL nominees, Republicans and sometimes Democrats made them regularly jump the 60-vote hoop.  Stephen Breyer, for example.   This is not something that just happens once in 25 or 30 years or so.

DID appeals court nominees have to surmount a 60-vote hurdle?

<u>ASK</u&gt Stephen Breyer (now on the Supreme Court), when he was named by President Carter to be an appeals judge
  on the 1st circuit in 1980.

BREYER had to overcome two cloture votes.

 He succeeded, not on the first, but on the second vote  –>      68 -28.

Breyer was confirmed, 80-10, to the First circuit in 1980.

AGAIN And AGAIN, senators from the Republican side have opposed cloture and made appointees and judicial nominees garner far

more than the 50-vote majority threshold.

Republicans made judges jump thru the 60-vote hoop for cloture  a bunch of times, for  Marsha Berzon, Breyer, Richard Paez, Harvey Wilkinson, Lee Sarokin.

Judge Richard Paez, a Clinton appointee, had to pull more than 60 votes of acquiescence twice after he was stalled for 4 years.

Bill Frist voted TWICE to block him, for an “indefinite postponement”  (Paez prevailed on that vote 67-31), and in a formal cloture vote (Paez won cloture 85-14).  4 years after being nominated, Paez was confirmed 59-39.

 Now he wants time limits on filibusters . .  —>

                However, BILL FRIST voted against Cloture for Circuit court

nominee Richard Paez —after a 4-year wait for

Paez to reach the Floor of the Senate for a vote.

  Paez prevailed in that cloture motion.

The Roll call record of the cloture vote can be found here:

Still, one more maneuver to oppose Paez was tried.   A motion to further postpone was made the next day.

  31 Republican members (including Frist, Lott, Grassley, Santorum, DeWine, Brownback, Kyl, Ashcroft)  cast votes “To indefinitely postpone the nomination of Richard A. Paez.”

  while 67 members voted for the nomination to proceed (not a formal cloture vote). That vote record is found   here.

           That vote and the earlier vote to deny cloture failed because Paez had wider support:

59 members voted to confirm him, and he easily got far more than 60 votes to invoke cloture,

  (Frist , Smith, DeWine, Inhofe, Brownback, etc. notwithstanding),    85 – 14.                              

Paez won confirmation, 59-39, 2 not voting, and 14 Republicans joined 35 Democrats in confirming the nominee one day after the cloture vote  –   four years after the date he was first nominated.    

  [Paez was finally confimed in March of2000.]

The roll-call of the vote to confirm is  here.

                   

     The lesson from the historical record of rollcalls-  If a nominee can gain enough support and consensus,  he will overcome the most determined opposition.

For a preceding appellate nominee, Marsha Berzon  —    

Allard, Brownback, Bunning, Craig, DeWine, Enzi, Gramm, Helms, Tim Hutchinson, Inhofe, Murkowski, Shelby, and Smith (but not Frist) again voted against cloture, but cloture was successfully invoked, 86-13, and Berzon won confirmation, 64 – 34.      

[Record of the roll call vote for the nomination is    here;    for the cloture motion to proceed,  here  [March 8, 2000]    

The Sarokin confirmation and cloture votes from 1994 can be accessed online.

So what does the record show?  –>  Senators regularly have made presidential nominees surmount the 60-vote hurdle.

The same single clause of the Constitution covers the approval of all nominations made by the President.  It’s Article 2, Section 2, clause 2. There is no constitutional distinction for judges, diplomats, cabinet.

   How could members of the Judiciary Committee (lawyers all of them), its chairman, Orrin Hatch, then-majority leader Bob Dole (1995), future majority leader Lott, future Attorney General Ashcroft, Sen. Arlen Specter (1994), whip Mitch McConnell have voted repeatedly to filibuster Presidential nominations in violation of the Consitution?  How do they square it now?

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SO WHAT IS UNPRECEDENTED in the confirmation battles ??  –>

Just this.  President George Bush Refuses to nominate a judge who doesn’t offend or appall fewer than 40 senators.

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        US Constitution, Article 2, section2, clause2  

and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .

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        Cross-posted at dailykos [Link]     Please consider recommending, over here and there.
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