In advocating the so-called “nuclear option” to bar Senate filibusters against judicial nominees, Fox News host Sean Hannity and Roll Call executive editor Morton M. Kondracke gave misleading accounts of historical efforts to block nominees. On the March 15 edition of Hannity & Colmes, Hannity declared that “this is the first time in history that this has been used against nominees that would be confirmed.” The same day on Fox News' Special Report with Brit Hume, Kondracke said that “there's never been a judicial nomination that actually went to a filibuster, and the Democrats have filibustered a number of President Bush's nominees.” In fact, Republicans filibustered several of then-President Clinton's ambassadorial and Justice Department appointments in the 1990s and attempted to filibuster Clinton's judicial nominees. Moreover, after the Republicans regained control of the Senate in 1995, they blocked approximately 60 Clinton judicial nominees, denying them votes on the Senate floor and denying most even a hearing before the Senate Judiciary Committee.
In addition to the approximately 60 judicial nominees that the Republican-led Senate blocked without resorting to a filibuster, several Republican senators, including current Majority Leader Bill Frist (R-TN), unsuccessfully attempted to filibuster other Clinton judicial nominees. The Los Angeles Times reported on November 13, 2003: “As recently as March 2000, several Republicans voted to filibuster two Californians whom President Clinton had named to the 9th Circuit appellate court: Richard A. Paez and Marsha L. Berzon. ... Ultimately, the Republican stalling tactics failed, and both jurists now sit on the appellate court.” The Washington Post documented a third attempted filibuster of a Clinton judicial nominee on October 5, 1994: The Senate “voted 85 to 12 to cut off a filibuster against confirmation of U.S. District Judge H. Lee Sarokin as a member of the 3rd U.S. Circuit Court of Appeals. But Republicans continued to talk into the evening against Sarokin, whom they condemned as a 'liberal' and 'judicial activist.' ”
As Judd Legum and Christy Harvey of the American Progress Action Fund noted in the March 3 issue of The Nation, Frist distorted the facts to defend his participation in the filibuster of the Paez nomination:
When confronted about his vote late last year, Frist claimed he filibustered Paez for “scheduling” purposes. Not true. A press release by former Senator Bob Smith titled “Smith Leads Effort to Block Activist Judicial Nominees” plainly states that the intent of the filibuster was to “block” the Paez nomination.
In the first several years of Clinton's presidency, Republicans in the Senate also used the filibuster to block several non-judicial nominees. The New York Times reported on October 8, 1993, that "[Sen. Jesse] Helms [R-NC] tied up the Senate for much of the day in a filibuster that he began Wednesday evening over the nomination of Mr. [Walter E.] Dellinger to become Assistant Attorney General for the office of legal counsel." Similarly, the Washington Post reported on May 25, 1994, that the Senate “failed by six votes to break a GOP-led filibuster against the ambassadorial nomination of one-time anti-Vietnam War activist Sam Brown.”
Finally, Republicans did sustain a filibuster against the promotion of a Democratic president's judicial appointee in 1968. The Washington Post reported on December 13, 2004: “In 1968, Republicans filibustered President Lyndon B. Johnson's choice of Supreme Court Justice Abe Fortas to be chief justice, but Johnson withdrew the nomination in the face of Fortas's likely rejection by the Senate.”