FLASHBACK: Republican Senators Claimed Judicial Filibusters Are Unconstitutional

June 21, 2010 2:06 pm ET

During an interview on Fox News Sunday, Senate Minority Leader Mitch McConnell said it is "possible" that Republicans will attempt to filibuster Elena Kagan's nomination to the Supreme Court.  However, while filibustering is within the GOP's rights, at least eight Republican senators have publicly argued that judicial filibusters are unconstitutional.

Sen. McConnell: Kagan Filibuster Is "Possible"

Sen. Mitch McConnell (R-KY):

"But I think it's entirely too early to determine whether or not this nominee would be subjected to a 60-vote threshold. We know that the president has filibustered Supreme Court nominees. We know the vice president has filibustered Supreme Court nominees. We know Senator Reid has and we know Judiciary Committee Chairman Leahy has.

I have never filibustered a Supreme Court nominee. But it is possible, but entirely too early to know whether that would be appropriate." [Fox News Sunday via Nexis, 6/21/10, emphasis added]

Senate Republicans Claimed Judicial Filibusters Are Unconstitutional

Sen. Kit Bond (R-MO)

"By resorting to filibustering judicial nominees who have the support of a majority of Senators, which began in 2003 by colleagues on the other side of the aisle, they are throwing overboard 214 years of Senate courtesy and tradition...The Constitution of the United States does not contain a word about filibusters. The Federalist Papers do not contain the word 'filibuster.' Rather, the Constitution lays out the standards for confirming judges. It does not require a 60-vote majority for confirmation. It requires a majority vote to confirm members of the Federal judiciary." [Senate Floor Speech, 5/19/05, emphasis added]

Sen. Sam Brownback (R-KS)

"Finally, neither filibusters nor supermajority requirements have any place in the confirmation process. Those tactics of obstruction should become the historical relics they deserve to be. The country deserves, and the Constitution demands, a prompt, thorough debate and a fair up-or-down vote on Judge Roberts' nomination to the Supreme Court, and I look forward to being an active participant in that process." [Brownback.Senate.gov, 7/25/05, emphasis added]

Sen. Jim Bunning (R-KY)

"The United States Senate faces an unprecedented crisis brought on by the minority party. Judges who have been nominated by the President of the United States to the federal bench have been held up by a filibuster and cannot get a fair up-or-down vote. [...] I support a change in the rules of the Senate to allow for an up-or-down vote on judicial nominations. We must not let the minority party circumvent the Constitution, and take away the right of the President to have his judicial nominees voted on by a simple up-or-down vote." [Bunning.Senate.gov, "The Duty To Vote Up-Or-Down," 5/29/05, emphasis added]

Sen. Mike Crapo (R-WY)

"We are pleased that three of the President's judicial nominees will receive fair up-or-down votes - it is about time. However, we continue to stress that the Constitution requires the Senate to hold up-or-down votes on all nominees. We will continue to work to ensure that is the case." [Craig/Crapo Press Release via Nexis, 5/25/05, emphasis added]

Sen. Chuck Grassley (R-IA)

"What we're seeing now is unprecedented. Judicial nominees with clear majority support have never been denied a vote by a partisan filibuster until two years ago, and now we've got 10 qualified judges with majority support being held up. The Democrats are denying the Senate its constitutional responsibility of advice/consent by systematically denying appellate court nominees an up-or-down vote. And we can't find anywheres [sic] in the Constitution that says a supermajority is needed for confirmation." [Grassley Remarks via Nexis, 5/19/05, emphasis added]

Sen. Judd Gregg (R-NH)

"From a constitutional perspective, judicial nominations have the right to an up or down vote in the Senate, and the filibustering of these nominations is inconsistent with over 200 years of tradition in the Senate and distorts our system of checks and balances." [Portsmouth Herald, 5/19/2005, emphasis added]

Sen. James Inhofe (R-OK)

"But the Democrats, who cannot muster a majority to oppose him, are seeking, in effect, to change the Constitutional majority-vote requirement. By sustaining this filibuster, they are asserting that 60 votes, not 50, will be required to approve Mr. Estrada. If successful, their effort will amount to a de facto amendment to the Constitution. This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution." [Senate Floor Speech, 3/11/03, emphasis added]

Sen. Jeff Sessions (R-AL)

"The vote, historically, since the founding of this Republic, is a majority vote. Lets [sic] look at that. The Constitution says that the Congress shall advise and consent on treaties, provided two-thirds agree, and shall advise and consent on judges and other nominees. Since the founding of the Republic, we have understood that there was a two-thirds super majority for ratification and advice and consent on treaties and a majority vote for judges." [Sessions Floor Statement, 5/23/05, emphasis added]

Several other Republican senators, including McConnell, have argued that every judicial nominee deserves an up-or-down vote. Read more HERE. 

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