The record: what sort of filibustering has taken place in the Senate, where judicial nominations are concerned?

ONE of the most heated rhetorical battles in the war over Democratic judicial filibusters concerns the question of whether those filibusters are "unprecedented." Look in the Nexis database, and you'll find hundreds of examples of Republicans saying yes, the filibusters are unprecedented, and Democrats saying no, they're not.

One thing that can be said for certain is that if there is precedent for the Democrats' actions, there isn't much of it. For all the disagreement, the argument boils down to just three cases: the failed 1968 nomination of Abe Fortas to be chief justice of the United States and the successful Clinton-era nominations of Richard Paez and Marsha Berzon to the Ninth Circuit Court of Appeals.

First Fortas. Appointed to the Court in 1965, Fortas was Lyndon Johnson's choice to move up to chief justice when Earl Warren retired. But that required another Senate confirmation, and during that process, Fortas was opposed by conservative Republicans and Democrats who were unhappy with his record on the Court. Perhaps more important, Fortas found himself the target of a number of serious ethics charges that would ultimately lead to his departure from the Court.

When the nomination reached the Senate floor, Fortas's opponents wanted plenty of time to air their case. Supporters wanted as quick a vote as possible. The opponents announced a filibuster--a tactic without precedent in judicial confirmations. "Never has the Senate refused the basic courtesy of speaking to the merits of a nominee," Mike Mansfield, the Montana Democrat and Senate majority leader, told his colleagues. "I can envision no circumstances that would justify the rejection of this Senate precedent. One should ponder deeply before overturning 180 years of experience."

The filibuster quickly revealed that Fortas did not have much support; when the vote came to cut off debate and proceed to an up-or-down vote, just 45 senators voted in favor of moving the nomination forward. It was far fewer than what was needed to break the filibuster. Johnson withdrew the nomination almost immediately; Fortas left the Court altogether a few months later.

In recent months, some Republicans, most prominent among them the former White House counsel C. Boyden Gray, have argued that the Fortas case wasn't a real filibuster. "What a filibuster is, is an extended debate," Gray explained at a Washington news conference in early May. "With the case of Fortas, he was on the floor only five days. There was a cloture vote, which I think was really more in the nature of a test vote."

Gray has pointed out a number of ways in which the Fortas case differed from today's filibusters. For one thing, back in 1968 the opposition's goal appeared to have been to prolong debate in order to better expose Fortas's shortcomings--and then to kill the nomination in a regular vote. For another thing, senators were not divided along party lines; there were opponents of Fortas in both parties. For yet another, it is not at all clear that Fortas had the support of a majority of senators, as all of Bush's nominees do. And, of course, the case involved the Supreme Court, as today's filibusters do not.

Still, it was a filibuster--as Mansfield said, the only one in 180 years of Senate history. Then, in 2003, the Democrats began a campaign of filibustering Bush nominees. They quickly filibustered not one, not two, but ten Bush nominees to the federal courts of appeals--a systematic use of the filibuster to block a slate of candidates that was, in fact, unprecedented. Also, the Democratic filibusters were organized by party leadership as part of party policy--another difference from the Fortas matter.

The two other cases cited by Democrats as "precedent" for their filibusters are the 1996 nomination of Richard Paez, a U.S. district-court judge in California who was chosen by Bill Clinton for a seat on the Ninth Circuit Court of Appeals, and the 1998 nomination, also to the Ninth Circuit, of San Francisco lawyer Marsha Berzon.

Paez had plenty of opponents among Republicans. They didn't like how he had spoken publicly--an unusual move for a federal judge--against California's Proposition 209, which ended the state government's use of affirmative action in education and hiring. They didn't like how he had thrown out a Los Angeles law forbidding "aggressive panhandling," contending that it violated the First Amendment's guarantee of freedom of speech. And later, they didn't like his role in a slap-on-the-wrist plea bargain in the case of John Huang, one of the key figures in the Clinton fundraising scandals. As for Berzon, Republicans objected to the liberal causes she had promoted while working on behalf of the American Civil Liberties Union.

Republicans--the majority party then, as now--stalled both nominations in the Senate Judiciary Committee, where they sat for more than three years in the case of Paez and more than a year in the case of Berzon. Clinton and others in his administration complained loudly that both nominees were being mistreated by the committee, demanding that they be given votes in the Senate. In 1999, Republican senators Arlen Specter and Orrin Hatch responded to the president's criticism, voting with Democrats on the Senate Judiciary Committee to approve Paez and Berzon and to send the nominations to the full Senate.

That's when the filibuster talk started, led by New Hampshire Republican Bob Smith. Smith told the Associated Press that he would try to block both Paez and Berzon, because "I think they are activist judges. I think they are out of the mainstream of American thought and I don't think either one should be on the court"--a description that sounds remarkably like the words used by Democrats today to describe Bush judicial nominees.

But Smith's effort to organize a filibuster did not attract much support from his fellow Republicans. Then-majority leader Trent Lott announced that, while he opposed Paez and Berzon and would vote against them, he was not in favor of denying them a vote on the Senate floor. "My feeling is that we should not start filibustering these nominations," Lott told the AP. When Smith's filibuster attempt was put to a vote, it lost big: 85 to 14 in the case of Paez and 86 to 13 for Berzon. In the Paez vote, 40 Republicans joined Democrats in voting against a filibuster; for Berzon, it was 41. There was never any filibuster, because Republicans would not support it.

The nominations then went on to a final vote in the Senate. Paez was confirmed on a 59 to 39 vote and Berzon on a 64 to 34 vote. In each case, more than two dozen Republicans who had originally voted in favor of giving the nominees an up-or-down vote ended up voting against them. "He did not want to have a meltdown in the process," recalls one GOP aide of his boss, who voted against a filibuster, and then against Paez and Berzon. "He thought that would be blood-in-the-streets war, and we shouldn't do it."

Still, today some Democrats claim that Republicans filibustered Paez and Berzon. "They did filibuster judges," Sen. Charles Schumer told Fox News in April. "Paez, Berzon were filibustered in 1999 and 2000." But as much as Schumer and other Democrats might want to use Paez and Berzon as a precedent, that is simply not correct. They were not filibustered.

After the Paez and Berzon votes, there was no more talk of filibusters until Democrats--the minority party, unlike the Republicans in the Clinton years--began blocking Bush nominees in 2003. As opposed to Paez and Berzon, and even Fortas, the Democratic efforts are real filibusters by party leaders to kill nominations by never allowing them a vote on the Senate floor.

In fact, Democrats did not even pretend that they wanted to extend the debate on the merits of the filibustered nominees. In April 2003, for example, after Democrats filibustered the nomination of Miguel Estrada to a seat on the D.C. Circuit Court of Appeals, they announced that they would launch a second filibuster against Priscilla Owen, the president's choice for a seat on the Fifth Circuit. Speaking on the Senate floor, Republican Robert Bennett asked Democrat Harry Reid, who was at the time the minority whip, how much time Democrats would like to debate the nomination.

"I ask unanimous consent that there be an additional six hours for debate on the Owen nomination," said Bennett.

"I object," said Reid.

"I modify the request to ten additional hours," Bennett answered, offering more time.

The presiding officer of the Senate asked whether there were any objections. "Yes," said Reid. "There are more productive things that could be done during those ten hours." Reid suggested moving on to other, "noncontroversial" judicial nominees. He would not even talk about Owen. When Bennett said to Reid, "I ask if any number of hours would be sufficient for the senator from Nevada," Reid answered, "There is not a number in the universe that would be sufficient."

And with that, Owen was filibustered. And soon there were others, for a total of ten. No matter what anyone said, that had never, ever, happened before.