The First Judicial Filibuster

Senator Feinstein described the role of the Senate in selecting judges on May 10, 2005, which included:

In 1795, President George Washington nominated John Rutledge to be Chief Justice. Soon after his nomination, Rutledge assailed the newly negotiated and popular Jay Treaty with Britain. Even as Rutledge functioned as Acting Chief Justice, the Senate debated his nomination for 5 months, and in December 1795 the body rejected him 14 to 10, illustrating from the first administration that the Senate has always enjoyed a strong prerogative to confirm or reject nominees.

Rutledge received his up or down vote but not Stanley Matthews:

Now, use of procedural delays throughout history has prevented nominees from receiving an up-or-down vote. The claim that it is unprecedented to filibuster judicial nominations is simply untrue. In 1881, Republicans held a majority of seats in the Senate but were unable to end a filibuster to preclude a floor vote on President Rutherford B. Hayes’s nomination of Senator Stanley Matthews to the Supreme Court. Matthews was renominated by incoming President James Garfield, and after a bitter debate in the Senate, was confirmed by a vote of 24 to 23. This has been described as the first recorded instance in which the filibuster was clearly and unambiguously deployed to defeat a judicial nomination.

Feinstein continues with the Fortas filibuster, the Paez filibuster, and the other tactics employed by Orin Hatch et al. to deny up or down votes to President Clinton’s judicial nominees.