Sheryl Gay Stolberg: Sen. Frist May Be Right: that No Nominee with Majority Support Has Been Denied an Up or Down Vote

As part of his crusade to bar Democrats from using the filibuster to block President Bush's judicial nominees, the Senate Republican leader, Bill Frist, has a stock saying: "Never in the history of the Senate had a judicial nominee with majority support been denied an up-or-down vote, until two years ago."

Democrats say Dr. Frist is wrong. In fact, they say, from 1949 to 2002, 17 judicial nominations were filibustered, including Abe Fortas, President Lyndon Johnson's 1968 choice for chief justice of the Supreme Court.

So who's right? Both sides, it seems.

"Cloture" is the parliamentary tool used by Senate leaders to limit debate and end a filibuster, so that members can vote to confirm or reject a nominee with a simple majority. Under current Senate rules, cloture requires 60 votes.

Senate rules began to permit cloture on nominations in 1949, though none was attempted until the Fortas fight in 1968, according to the Congressional Research Service. From 1968 to 2002, Senate leaders tried cloture 17 times for judicial nominees.

So the Democrats can plausibly claim 17 filibusters.

But 16 of those nominees - all but Mr. Fortas - were ultimately confirmed, meaning that Dr. Frist is correct that they received "an up-or-down vote." Mr. Fortas drew opposition from senators in both parties; when the Senate Democratic leader, Mike Mansfield, attempted cloture, just 45 senators voted to end debate, while 43 voted against.

So while Mr. Fortas may have been filibustered, Dr. Frist has evidence that he did not have "majority support." Johnson withdrew his nomination, so we'll never know.