The judicial filibuster isn't a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it.
During the contentious fight over Clarence Thomas's nomination to the Supreme Court in 1991, Democrats who were harshly opposed to him still refused to filibuster his nomination, even though they would have had the votes to do so. Democratic Sen. Patrick Leahy called a filibuster against Thomas "nonsense" and a "crazy idea," declaring himself "totally opposed to a filibuster."
Democrats point to a filibuster of Lyndon Baines Johnson's 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today's filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn't have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.
Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition. [National Review, 5/13/05, via Media Matters]