Gary Bauer claimed Republicans too “gentlemanly” to block judicial nominees

Gary L. Bauer, former Republican presidential candidate and president of conservative advocacy organization American Values, falsely claimed that “conservatives never use” the tactics “liberals get away with” to block some of President Bush's judicial nominations because conservatives “approach the controversy in a much more gentlemanly fashion.”

On the February 25 edition of Family News in Focus, Focus on the Family's daily radio broadcast, substitute host Keith Peters played a clip from an interview with Bauer, in which they discussed how “to get President Bush's judicial nominees past the Democrat filibuster blockade”:

PETERS: Conservatives waging these battles may be too nice.

BAUER: What we have is an uneven playing field where the liberals get away with these kinds of tactics, and the conservatives never use these tactics because they approach the controversy in a much more gentlemanly fashion.

PETERS: He says they must take whatever steps necessary to restore balance to our court system.

In fact, while Democratic senators used the filibuster to block 10 of Bush's 229 first-term judicial nominees, it was Republicans who first initiated a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. It was, according to a "Historical Minute Essay" on the U.S. Senate website, “the first filibuster in Senate history on a Supreme Court nomination.” While conservatives have recently insisted that no filibuster actually occurred during the Fortas nomination process in order to claim that Democrats' filibustering is “unprecedented,” a June 5, 2003, Congressional Research Service report pdf described it as "[t]he first clear-cut example of the use of a filibuster against a nomination" and noted that a cloture vote took place:

The first clear-cut example of the use of a filibuster against a nomination, including taking a cloture vote, occurred in 1968 over President Lyndon B. Johnson's decision to elevate Associate Supreme Court Justice Abe Fortas to be Chief Justice. Senators spoke for several days on the motion to proceed to the nomination. The vote to invoke cloture on the motion to proceed failed, 45-43, on October 1, and, at Fortas's request, President Johnson withdrew the nomination on October 4.

A June 29, 2003, report by the progressive advocacy organization People for the American Way (PFAW) also pointed out: “As recently as 2000, cloture votes were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit.” PFAW noted that current Senate Majority Leader Bill Frist, now a primary critic of Democrats' opposition to Bush's judicial nominees, “was among those voting against cloture” -- in other words, supporting a filibuster -- on the Paez nomination.

Moreover, the Republican-controlled Senate prevented approximately 60 of former president Bill Clinton's nominees from receiving a vote on the Senate floor, and in many cases, even a hearing in the Senate Judiciary Committee. And despite Democrats' opposition to a few of Bush's nominees, The Washington Post pointed out in a December 13, 2003, article that “confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan.”

Senate Republicans under Clinton strictly enforced a “blue slip” rule, which, as The Washington Post explained, is a process in which a senator from a nominee's home state can block a nominee by failing to turn in “blue approval papers that senators are asked to submit on nominees for federal judgeships in their states.” Senate Republicans, led by Judiciary Chairman Senator Orrin Hatch (R-UT) and former senator Jesse Helms (R-NC), used the “blue slip” to block Clinton nominees, but Hatch relaxed the policy after Bush became president. Washington Monthly blogger Kevin Drum has tracked Senate Republicans' manipulation of the “blue slip” rule. Additionally, an August 14, 2001, CNN report noted that even Attorney General and then-White House counsel Alberto Gonzales has said that Republican senators' “partisanship over judicial nominations” during the Clinton era was “improper” and “wrong.”

Family News in Focus is produced by Focus on the Family, the conservative organization led by James C. Dobson, Ph.D. According to the group's website, Focus on the Family radio programs are broadcast “in 25 languages on over 8,300 radio facilities heard in 164 countries.” The regular host of Family News in Focus is Bob Ditmer. According to his bio on the program's website, Ditmer has “worked as a broadcast journalist in some of the top secular stations and markets” and “has a B.S. in Religion from Liberty University,” the school founded by Moral Majority founder and right-wing pundit Reverend Jerry Falwell, who serves as its chancellor.