Communications Department

Senate Showdown Near on Filibusters of Bush Judges

Apr 5, 2005 | Judicial

WASHINGTON (April 5, 2005) – Senate Republican leaders may take bold action in April or May to put an end to Democratic filibusters of President Bush’s nominees to federal courts – but a coalition of liberal and pro-abortion pressure groups has launched a multimillion-dollar ad campaign in an attempt to block the reform.

The issue boils down to whether a judicial nominee should be able to achieve confirmation if he or she enjoys the support of a simple majority of the Senate – which is the position supported by pro-life Senator Majority Leader Bill Frist (R-Tn.) and most Republican senators – or whether a nominee must surmount a 60-vote hurdle, which is the position currently backed by Democratic senators.

“The outcome of this fight will depend on whether at least 49 other Republican senators support Senator Frist on declaring filibusters of judicial nominees out of order,” said NRLC Legislative Director Douglas Johnson. “The outcome may very well determine the fate of President Bush’s nominations to future vacancies on the U.S. Supreme Court, as well as the future makeup of the powerful federal appeals courts.”

Chief Justice William Rehnquist, who is battling cancer, is widely expected to announce his retirement at the end of the Court’s current term in June, and all of the current justices are over age 65, except for Justice Clarence Thomas.

Traditionally, a simple majority has sufficed to confirm a judicial nominee. But during the 108th Congress (2003-2004), Senate Democrats collectively refused to allow up-or-down votes on ten of President Bush’s nominees to various U.S. courts of appeals – powerful courts that are just one level down from the U.S. Supreme Court.

The blocked nominees had been targeted by a coalition of liberal groups, in which pro-abortion advocacy groups such as NARAL and Planned Parenthood are leading participants.

The Democrats blocked the up-or-down confirmation votes by invoking their right to unlimited debate, or “filibuster.” Contrary to fictional depictions, a filibuster does not actually require marathon speeches – rather, it requires nothing more than triggering a procedural requirement that a matter cannot come to a final vote without the agreement of 60 senators (called “invoking cloture”).

According to research by the Committee for Justice, a group that supports confirmation of President Bush’s nominees, prior to 2003, “no judicial nomination with clear majority support ever died by filibuster.”

During the 108th Congress, the Republicans held a 51-49 majority in the Senate, and every Republican supported cloture on every one of the disputed judicial nominees. But they were joined by four or fewer Democratic senators on each cloture votes, so the ten nominations died.

In the November 2004 election, Republicans increased their Senate majority to 55 seats, and President Bush has re-nominated seven of the 10 blocked nominees (the others did not desire re-nomination). But the new Democratic leader, Sen. Harry Reid (D-Nv.) said that the Democrats will again block them by filibuster.

Although Reid and other backers of the filibusters have claimed that they have used the filibuster to block “extremist” nominees, the filibustered nominees generally have received high ratings from the ABA and home-state legal associations.

The seven jurists who were blocked by filibuster in 2003-04 and recently re–nominated are Priscilla Owen, nominated to the U.S. Court of Appeals for the Fifth Circuit; Janice Rogers Brown and William Myers, nominated to the Ninth Circuit; William Pryor, nominated to the Eleventh Circuit; and Henry Saad, Richard Griffin, and David McKeague, nominated to the Sixth Circuit.

President Bush also re-nominated a number of others who were not confirmed during 2003-2004 because of threats of filibuster or other delaying tactics by Senate Democrats.

In recent months, Republican leader Frist has said that unless the Democrats relent, he will move to have filibusters on judicial nominees declared out of order.

This reform would involve a ruling by the presiding officer – the Vice-president, if he is present, or otherwise a designated Republican senator – that filibusters simply are not permitted on judicial nominations.

Under Senate rules, such a “precedent” is ratified if a simple majority votes to support it. Because it is unlikely that any Democratic senator will back the reform, it can only succeed if it is supported by at least 50 of the 55 Republican senators (with Vice President Cheney voting to break any tie).

In a March 15 letter to Frist, Reid said that if the Republicans make the change, the Democrats will use procedural devices to block action on all Senate business other than “legislation supporting our troops and other legislation needed to ensure the ongoing operations of the federal government.”

In response, Senator Orrin Hatch (R-Utah) commented, “Democrats are threatening to hold hostage the American people’s legislation to maintain their ability to rig the judicial confirmation process.”

The proposed reform is referred to by terms such as the “majority rule reform” or “the constitutional option” by those who support it, and as the “nuclear option” by its detractors. The news media, for the most part, have adopted the “nuclear” terminology.

The reform advocated by Frist would apply only to filibusters of judicial nominees, not filibusters on bills or amendments to bills.

“At this writing, the great majority of Republican senators support an end to judicial filibusters, but a handful are opposed or undecided,” Johnson commented. “Without Democratic support, the reform cannot succeed if six or more Republican senators refuse to support it.”

According to a national scientific poll released on March 15 by the Judicial Confirmation Network, 82 percent of voters agreed that “if a nominee for any federal judgeship is well qualified, he or she deserves an up or down vote on the floor of the Senate.” Asked if they thought that “senators have a constitutional duty to give an up or down vote to a nominee for the U.S. Supreme Court,” 78 percent agreed and 12 percent disagreed.

Presented with the proposition that “if a well-qualified nominee is pro-life on abortion, he or she should be disqualified from serving on the U.S. Supreme Court,” 79 percent of voters disagreed, and 16 percent agreed.

The complete results of the poll are reported at

Opposition campaigns

On March 30, the liberal advocacy group “People for the American Way” (PFAW) announced that it was launching a TV ad campaign in 18 states. The ads are intended to produce pressure on targeted Republican senators not to support Frist’s move, and in some cases to hurt senators who have already declared their support for the reform.

PFAW President Ralph Neas said that the organization plans to spend around $5 million on the campaign.

In the ad, a man identified as a Republican firefighter says that the filibuster should be preserved so that “no one party has absolute power.” The ad also employs clips from the classic 1939 Jimmy Stewart movie “Mr. Smith Goes to Washington,” in which “Senator Smith” is shown conducting a one-man filibuster to prevent his expulsion from the Senate on unfair charges.

“The recent routine use of the filibuster by the Senate Democratic caucus to block well-qualified judicial nominees bears no similarity to the one-man marathon of the fictional Senator Smith,” commented NRLC’s Johnson. “What we see now is an abuse of power by a minority, acting in concert to prevent the confirmation of jurists who are well qualified and who enjoy majority support, largely because this has been demanded of them by certain liberal and pro-abortion pressure groups.”

The “media watchdog” website commented on the
PFAW ad, “In fact, eliminating the filibuster would still allow all senators ample opportunity to speak and be heard. What’s actually at stake is whether a minority of 40 senators will continue to have the power to block” judicial nominations.

C. Boyden Gray, chairman of the Committee for Justice, an organization that supports the reform, commented, “While the legislative filibuster does have a long pedigree, permanent filibuster of judicial nominees with clear majority support is unprecedented in Senate history before 2003, when Democrats employed filibusters against ten of the President’s 34 appellate nominees. It was the Democrats who went ‘nuclear’ in 2003, by seeking to redesign the Constitution’s majority confirmation standard to a more empowering 60-vote standard.”

The states targeted by PFAW are Alaska, Arizona, Indiana, Iowa, Kansas, Kentucky, Maine, Mississippi, Nebraska, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Virginia.

On March 28, the Capitol Hill newspaper Roll Call reported that Neas said that 75 of the organization’s 120 staffers are now working full time on the filibuster issue.

The article also reported that Democratic Senate staffers were scheduled to attend a meeting at AFL-CIO headquarters on March 28 to plan further coordinated strategies on the issue – a meeting also to be attended be officials of the American Federation of State, County, and Municipal Employees and the Service Employees International Union.

Several other groups are also running ads in defense of filibusters on judicial nominees, or say that they plan to do so, including the Alliance for Justice and MoveOn.

“The pro-abortion groups have been losing elections, so now they are going all out to prevent reform of the activist federal courts,” Johnson commented.

According to press reports, Republican Senators Lincoln Chafee of Rhode Island, and Olympia Snowe and Susan Collins of Maine, seem most likely to oppose Frist’s move.

Press reports have indicated that a number of other Republicans are undecided, including Senators John Warner (Va.), Chuck Hagel (Ne.), and John McCain (Az.).

The Washington Times quoted Warner as saying, “I have not reached a firm view on the matter. However, I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception.”

A spokesman for Hagel told the paper that “he wants to see how the debate plays out,” but that “he is very frustrated with the treatment of the judges.”

On NBC-TV’s Meet the Press (March 20), McCain – a past and potential presidential candidate – said, “I’m leaning against” the reform, but he added that he would listen to the arguments of the Republican leadership.

Sen. Boxer Advocates 60-vote Requirement
for All Federal Judges

Senate Democratic Leader Harry Reid (D-Nv.) and many other Democratic senators have insisted that they have employed filibusters only to block a number of “extremist” nominees. However, one prominent Democratic Senator, Barbara Boxer (D-Ca.), recently took a different tact, explicitly advocating a 60-vote threshold for judicial confirmations across the board.

At a rally sponsored by in March, Boxer said:

“Why would we give lifetime appointments to people who earn up to $200,000 a year, with absolutely a great retirement system, and all the things all Americans wish for, with absolutely no check and balance except that one confirmation vote? So we’re saying we think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super important position. There ought to be a super vote. Don’t you think so? It’s the only check and balance on these people. They’re in for life. They don’t stand for election like we do, which is scary.”

Categories: Judicial