Henninger falsely claimed Democrats conceived use of filibuster to block Bush judicial nominees

Summary: The Wall Street Journal's Daniel Henninger falsely claimed in his January 13 column that Democrats had "deliver[ed] yet another innovation" in their use of the filibuster to block Bush judicial nominees. In fact, as Media Matters for America has previously noted, Republicans have used the filibuster and other tactics to block Democratic nominees.

In the course of criticizing Democrats for their questioning of Supreme Court nominee Samuel A. Alito Jr. during his nomination hearing, Wall Street Journal deputy editorial page editor Daniel Henninger claimed, in his January 13 column, that Democrats had "deliver[ed] yet another innovation" in their use of the filibuster to block Bush judicial nominees who were members of the conservative Federalist Society -- nominees that, Henninger reasoned, Democrats could not defeat in an up-or-down vote. In fact, as Media Matters for America has previously noted, the Democrats' use of the filibuster is not unprecedented; Republicans have used it and other tactics to block Democratic nominees.

Republicans initiated a filibuster against Associate Supreme Court Justice Abe Fortas in 1968, forcing President Lyndon Johnson to withdraw his nomination to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote," Griffin said, according to a May 2005 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).

Further, Senate Republicans tried to filibuster President Bill Clinton's nominations of Richard A. Paez and Marsha L. Berzon in 2000. Current Senate Majority Leader Sen. Bill Frist (R-TN), who has led Republican efforts to block Democratic filibusters of Bush nominees, voted against cloture -- the procedural vote to end debate or stop a filibuster -- in the Paez nomination. Republicans also attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994.

Beyond its attempted filibusters in the 1990s, the Republican-controlled Senate denied floor votes to approximately 60 Clinton nominees to the federal bench, and in most of these cases, the nominees were not even granted committee hearings.

From Henninger's January 13 Wall Street Journal column:

Since 1982, the Federalist Society's main purpose has been to create robust conservative legal theories and smart judges. President Bush nominated a class of them to the appellate bench. In response the minority Democrats largely abandoned Borking in favor of hostage-taking, thus delivering yet another innovation to our politics, the judicial filibuster. This in turn led to the threat of using the "nuclear option" in an institution known to our forbearers as "the world's greatest deliberative body."

This Roman circus dissipates, however, with the arrival of Supreme Court nominations, which are held in full view of the American people. And what has been witnessed so far is first [Supreme Court chief justice] John Roberts and now Samuel Alito discussing the law, rather than Coke cans, which puts their Democratic questioners on unfamiliar ground.

—R.M.