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Congress Fuming Over Filibusters

This is a partial transcript of "Special Report With Brit Hume," April 22, 2005, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

DICK CHENEY, VICE PRESIDENT OF THE UNITED STATES: Until recently, not once in the history of the United States had a group of senators ever used the filibuster (search) to block a judicial nominee having majority support in the Senate.

(END VIDEO CLIP)

JIM ANGLE, GUEST HOST: There is the vice president today talking about one of the hottest issues in town. And one of the nastiest battles in the history of the Senate is taking shape over it. All over whether a minority of senators can prevent an up-or-down vote on those nominated to be federal judges through the use of a filibuster, a practice that has a colorful and somewhat checkered history.

To help us explore that is senior writer for U.S. News and World Report, and FOX News contributor, Michael Barone.

Now, the vice president talked today. This seemed to be his clearest embrace, though we all had a pretty good idea that he was in favor of this. His clearest embrace of the notion of limiting filibusters.

MICHAEL BARONE, U.S. NEWS & WORLD REPORT: Of limiting the filibusters of the judicial nominees.

ANGLE: Right.

BARONE: The federal appeals court nominees.

ANGLE: Right.

BARONE: And I think he made the point accurately that until this current Bush administration, we had not seen filibusters used against federal court of appeals nominees by members of either party, even though there may have been times when they might have had the votes, a minority party might have had the votes to sustain a filibuster.

ANGLE: Now, he said in there that no filibusters of a judicial nominee having majority support in the Senate. That seems to be a reference to Abe Fortas in the '60s.

BARONE: Well, that's right. Justice Abe Fortas was nominated to be chief justice by President Lyndon Johnson in 1968. And in October 1968 — I believe that's the correct month — Senator Robert Griffin, Republican of Michigan, and several other senators, engaged in some extended debate over a four-day period.

Some of the current opponents of the Bush judicial nominees say, well, hey, that was a filibuster. I think the evidence on balance tends to be against it. It certainly wasn't labeled a filibuster for the most part at the time.

Senator Griffin himself said in the debate this is definitely not a filibuster. And, in fact, Justice Fortas did not, according to all the journalistic accounts, have a majority of votes to be confirmed as chief justice at that time.

ANGLE: And he was already on the court. So this wasn't to keep him off the court. It was to keep him from ascending to chief justice.

BARONE: To chief justice. And it was a nomination by a lame duck president, President Johnson having announced that he wasn't running for re-election.

ANGLE: You know, there have been some very controversial judicial nominations over the years. I think back to the Clarence Thomas nomination, in which, you know, the hearings went on for weeks and the huge controversy over that. But he wasn't the object of a filibuster, was he?

BARONE: He was not. He was confirmed, I believe, with 52 positive votes for his confirmation, just barely over the majority.

But as I go back over my recollections of that period, I don't recall anybody contemplating that there would be a filibuster of a Supreme Court nominee. There were certainly enough votes to sustain a filibuster; 47 or 48 senators who voted against him had a mind to do that. But it evidently did not occur to them.

And I think what we have seen, Jim, here is an escalation on the part of both parties of dilatory motions. If you look at the percentage of federal appeal court nominees who have been confirmed, what you will see is there is a step increase in non-confirmations during the Clinton presidency. And that represents Republicans most of the time, with the majority in the Senate delaying nominations, putting holds on them.

Some of the current Democrats are arguing that they filibustered. And I don't think that's accurate, but they did delay the nominees. The Democrats have a point there.

And then we have seen another step increase in the percentage of federal appeals court nominees who haven't been approved in the Bush administration. So you can say that this is — it resembles one of those nuclear war scenarios where they are escalating one side against the other.

But the Democrats in filibustering appeals court nominees have done something that no senators have done over the past more than 200 years. It's an escalation.

They have not changed the rules, but they have changed the customary practice. And that customary practice was so strong that nobody even thought about filibustering Clarence Thomas.

ANGLE: Yes. You are saying the rule was in place, but people didn't dare use it in these circumstances.

BARONE: They — it was not seen to be the customary practice in the Senate. And there are some things in the Senate, which you could do under the rules, but you generally don't do because it hasn't been customary practice, and it has been thought that other senators wouldn't tolerate it.

ANGLE: Now, Republicans were pointing today to nine Democratic senators back in the '90s who were irritated about Republican efforts to block Clinton judges. And they quoted a number of people, including Senator Kennedy, who said, "Senators who feel strongly about the issue of fairness should vote for closure," meaning ending any delay. "Even if they tend to vote against the nomination itself, it is wrong to filibuster a nomination, and the senators who believe in fairness will not let a minority of the Senate deny the nominee his vote by the entire Senate."

So a few years ago Democrats were on the other side and felt somewhat differently.

BARONE: Well, I believe in 1995, there was a motion supported by 19 senators, most or all of them Democrats — Senator Joe Lieberman, Senator Kennedy, Senator John Kerry — to eliminate the filibuster altogether, to have a sort of sliding scale where you would reduce the number of votes required for closure. And they made some strong statements and process arguments against filibusters.

The Democrats have a few — I can give you some quotes there where Republicans have changed positions on process issues.

ANGLE: Everybody ... has.

BARONE: One of my rules of life is that all process arguments are insincere, including this one.

ANGLE: About 10 seconds left. This would only — any change would only be for judicial nominations, not for policy debate.

BARONE: That is what Senator Frist is talking about. But, of course, you know, maybe he could change his mind on that later. But at the moment, that is the only thing that's going on.

ANGLE: OK. Michael Barone, thanks very much.

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