Attitudes Toward Filibuster Are About Power, Not Partisanship

But Republicans, having a keen sense of the importance of rhetoric, have sought to redefine the so-called "nuclear option" as the "Constitutional Option."

Much of the debate turns on a question of historical interpretation.

"The Constitutional Option restores 214 years of Senate rules in which every judicial nominee with majority support receives an up-or-down vote," Republican National Committee Chairman Ken Mehlman wrote to Frist in a memo released to reporters.

The GOP has built its case around this historical argument. To most people who understand little of the arcane rules of the United States Senate, it might seem that Republicans are making the claim that the filibuster has never been used to block judicial nominees.

The left argues that there's a long tradition in the Senate of filibustering not just legislation, but judicial and executive nominees as well.

So which side is right?

I called Ralph Neas, president of the liberal People for the American Way, which has led the grass-roots lobbying effort against the repeal of the judicial filibuster. Neas produced a list of 30 filibusters of judicial and executive nominations, beginning with Supreme Court chief justice nominee Abe Fortas in 1968. Fortas, who was nominated by President Johnson, eventually withdrew his nomination, after it was filibustered by Republicans.

I asked Rushton about Neas's list and he nearly blew a gasket.

"This is dishonest, and you can't call yourselve an impartial observer and let them get away with that!" Rushton thundered. "It's total BS."

Essentially, Rushton argues that in all of Neas's examples, with the exception of Fortas, there was a cloture vote that ended debate and allowed eventual up or down votes on all of the nominees.

"You can't call it a filibuster if there was a successful cloture vote," Rushton said.

Furthermore, Rushton points out, it has often been Republicans who voted to end filibusters of Democratic nominees. For instance, he said, Sen. Majority Leader Trent Lott (R-Miss.) sought the cloture vote to break the attempted filibuster of then-Sen. Bob Smith (R-N.H.) against Clinton circuit court nominee Richard A. Paez in 2000. A majority of Republicans voted with Lott and the Democrats to close the debate.