Democrats Can Succeed Without the Filibuster

July 13, 2005
By Gene C. Gerard

Since the resignation announcement of Supreme Court Justice Sandra Day O'Connor, various reporters and pundits have concluded that whomever President Bush nominates will win confirmation. Last week, a reporter for The Washington Post told listeners of National Public Radio that since Republicans control the Senate, Mr. Bush's nomination would be essentially guaranteed. However, if history is any indication, this is far from certain.

Since 1789, of the 148 individuals nominated to the Supreme Court, 28 have not been confirmed, nearly one-fifth. Twelve of those nominations were rejected. Of those, eight were rejected by a Senate controlled by the president's own party. The last time that a president made a Supreme Court nomination only to suffer a rejection when his party dominated the Senate was 1930.

Republican President Herbert Hoover nominated Judge John J. Parker to fill a vacancy on the Supreme Court. Judge Parker had been serving on the Fourth Circuit Court of Appeals since 1925. It was initially assumed that the nomination would easily win confirmation. In fact, the Chief Justice of the Supreme Court, Charles Evans Hughes, sent a letter to Judge Parker congratulating him on his presumed position on the court.

While conventional wisdom holds that the nomination of Robert Bork in 1987 was the first politically contentious Supreme Court nomination, this distinction is actually held by Judge Parker's nomination. The Senate Judiciary Committee recommended Parker's nomination to the full Senate, but not unanimously. A single "no" vote was made by Republican Senator William Borah of Idaho. At this point, two public interest groups came out against Judge Parker's nomination.

The American Federation of Labor (AFL) opposed the nomination due to Judge Parker's anti-union appellate court rulings. The AFL had become a mainstream and venerable labor organization by 1930, having been founded 40 years previously and enjoying a newfound popularity owing to the Great Depression. The AFL's opposition to Judge Parker was centered on two legal issues.

The AFL disliked a ruling by Judge Parker that found that the United Mine Workers did not have the right to unionize. The President of the United Mine Workers, John L. Lewis, sent a letter to the Senate opposing the nomination which asked, "Why lay another lash across the tortured shoulders of the struggling mine workers by placing in a position of vastly increased power a man who regards them as industrial bondmen?" Additionally, the AFL objected to rulings by Judge Parker upholding the constitutionality of "yellow dog contracts." These contracts, dating back to the 1870s, allowed employers to require workers to sign contracts specifying that as a condition of their employment they would not join or support a union.

The National Association for the Advancement of Colored People (NAACP) also came out in opposition to the nomination. In fact, this was the first time that the NAACP opposed a presidential nomination. The NAACP accused Judge Parker of being a racist, and for good reasons. In 1920, Parker ran for the governor of North Carolina. During the campaign, he opposed the right to vote for blacks. Consequently, the NAACP mobilized its members in states where blacks were a sizable portion of the population, as well as others sensitive to civil rights issues. The NAACP was apparently successful, as the Richmond Times Dispatch newspaper reported, "...a number of Senators who come from States which have large Negro votes are showing signs of panic" over the nomination.

As support for Judge Parker began to deteriorate, his nomination was returned to the Senate Judiciary Committee. This time, it was voted down ten to six, owing to six moderate Republicans who voted with the Democrats. Despite this, Judge Parker's nomination was submitted again to the full Senate for a vote. By the smallest margin in history, his nomination was rejected in a vote of 41 to 39. Although Republicans controlled the Senate by a margin of 56 to 39, 17 moderate Republicans joined with the Democrats in voting down the nomination.

There are several lessons to be learned from this Supreme Court nomination 75 years ago. Democrats can successfully oppose an unsuitable nominee, even when it is the Senate minority, if it sufficiently energizes its constituent groups. It's clear that the AFL and NAACP had a significant effect on Judge Parker's nomination. Also, the Democrats need not rely on the filibuster to prevent a nomination from being confirmed. In fact, it may be easier to forgo the filibuster and instead entice moderate Republicans to join them in rejecting a nomination.

At present, Senate Republicans would need 60 votes to thwart the filibuster of a Supreme Court nomination. However, Democrats would only need seven Republicans to join them in voting down a nomination, an easier though daunting task. One thing's for sure. Regardless of whom President Bush nominates, neither an easy nor a successful confirmation is guaranteed.

Gene C. Gerard taught history, religion, and ethics for 14 years at a number of colleges in the Southwest and is a contributing author to the forthcoming book Americans at War, by Greenwood Press.