| Revision as of 22:07, 21 July 2005 editTempshill (talk | contribs)9,225 edits Paragraph in historical background about Senate alternatives to the filibuster. Minor edits.← Previous edit | Revision as of 22:21, 21 July 2005 edit undo138.162.0.37 (talk) The Robertson quote about "Democrat judges" has nothing to do with Democrats blocking GOP judicial nominees. It might belong in the Robertson article, but it does not belong here.Next edit → | ||
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The "'''nuclear option'''" in ] during ] refers to a proposed change to the interpretation of the rules of the ] for ] confirmations. <!--define what the current rules are, then define what the change would be-->Currently, Senate rules allow any member to prevent a confirmation vote by staging a ], which requires a three-fifths majority (60 senators) to break (via a ] motion). The nuclear option would allow a ] (51 out of 100 senators) to end a judicial filibuster. Once ] is achieved, the nominee can be confirmed by a simple majority vote. | ||
| The nuclear option would affect nominees to ] and ], and, perhaps most importantly, the ]. ] ] is expected to step down during Bush's presidency -- he underwent throat surgery in October 2004 to treat his ] -- and if the nuclear option were enacted, Bush's nomination to replace him could be confirmed by a simple majority of 51 Republican senators. | |||
| <!--Editors are asked to define what the current rules are, then define what the change would be-->Currently, Senate rules allow any member to prevent a confirmation vote of a Presidential appointee by staging a ]. The filibuster can be overridden by a three-fifths majority (60 out of 100 senators) vote via a ] motion. The nuclear option would allow a ] (50 out of 100 senators, plus the ] in the case of a tie) to end a judicial filibuster. Once cloture is achieved, the nominee would be confirmed or rejected by a simple majority vote. | |||
| ==Recent History== | |||
| Republican Senate ] ] (R-Tenn) threatened to implement the nuclear option in response to what he called Democratic "obstructionism". At the time, Democrats had blocked the nomination of 10 of Bush's nominees. | |||
| ] currently hold 55 seats, while ] hold 44 seats. The sole independent, ], has one vote. | |||
| During his first term, ] ] nominated 46 people to federal appeals court seats, of which 36 were confirmed. Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. At the beginning of his second term, Bush resubmitted seven of the 10 names. Senate ] ] (D-Nev.) vowed to fight their confirmation. | |||
| Former Democratic Vice President ] called the nuclear option a Republican "power grab". In the 2005 Senate, Republicans held 55 seats, Democrats 44 and Independents held one. The nuclear option would allow 51 Republican Senators to hand confirmation power to themselves. | |||
| On ], ], Senate ] ] (R-Tenn) called for a vote on one of the blocked nominees, ], and threatened to use the nuclear option to overcome a Democratic filibuster. | |||
| In May ], Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) organized a moderate block of fourteen Senators (7 Republican and 7 Democrat) to sign a memo of understanding stating they would vote for cloture on three of Bush's nominees and would resist attempts to implement the nuclear option. Their memo said, in part: "We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration." | |||
| Although Senate rules can technically only be changed by a two-thirds (67) vote, Frist planned to rise to a ] that filibusters of judicial nominees are unconstitutional and/or otherwise improper. The Senate's presiding officer, likely Vice President ], could then rule on the point of order, which Cheney would be expected to sustain. The Democrats could then appeal the decision of the chair, a motion which the Republicans would immediately move to lay on the table. The motion to lay on the table is non-debatable, and would require a simple majority vote to sustain the ruling of the chair. With success, Republicans would establish a precedent that judicial filibusters are out of order. | |||
| The nuclear option would affect nominees to ], ] and the ], all of which are lifetime appointments. As ] ] is expected to step down during ] ] presidency, Bush's nomination to replace him could be confirmed by such a simple majority. | |||
| On ], ], ] ] (R-Ariz.) and Senator ] (D-Neb.) announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances". The moderate block of Senators that agreed to the compromise included, on the Republican side, John McCain, ], ], ], ], ] and ], and on the Democratic side, Ben Nelson, ], ], ], ], ] and ]. The bipartisan group is large enough to prevent the nuclear option from succeeding and also large enough to reach cloture on a Democratic filibuster. The agreement is available (pdf). It states, in part: | |||
| After the resignation of moderate Justice ], announced July 1, 2005, the nuclear option has become a more likely plan to appoint a more conservative justice in her place. | |||
| :''we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.'' | |||
| {{TOCright}} | |||
| ==A Change to Senate Rules== | |||
| ] ] first suggested using a ruling of the chair to defeat a filibuster of judicial nominees in ] ]. The ] for the plan was "Hulk." Weeks later Sen. ] coined the term ''nuclear option''.<!--('']'', May 10, 2003, "Judicial filibuster rule change faces high hurdle in Senate," Charles Hurt). - this needs to be replaced with a URL to the article--> The maneuver was called the ''nuclear option'' because it was seen as a last resort with possibly catastrophic consequences for both sides. The term's association to ] is intended to suggest the maneuver being a 'last resort', as well as the extreme consequences the rules change would produce. | |||
| As a result of this agreement, on May 25, 2005, Priscilla Owen, one of the original blocked nominees, was confirmed as federal judge. | |||
| Although the can normally only be changed by a two-thirds (67) vote, it was proposed to rise to a ] that filibusters of judicial nominees are unconstitutional and/or otherwise improper. The Senate's presiding officer, normally the Vice President, could then rule on the point of order. Presumably Vice President ] would be expected to sustain. The Democrats could then appeal the decision of the chair, a motion which the Republicans would immediately move to lay on the table. A motion to lay on the table is non-debatable, and would only require a simple majority vote to sustain the ruling of the chair. With success, Republicans would establish a precedent that judicial filibusters are out of order. | |||
| ==Senate Tradition== | |||
| The legality of the nuclear option has been challenged. The Senate parliamentarian, Alan Frumin, was appointed by Sen. Lott. Furmin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option. It's been reported that a ] report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate. | |||
| There is a long history of contentious disputes over the rules used to delay or block floor votes in the ] ]. Established procedures have been overturned at several points in the history of both Houses. | |||
| In the ], the ] (the right to unlimited debate) was used until ], when a permanent rule limited the duration of debate. The ] was a tactic used by the minority until an ] rule eliminated it. As the membership of the House grew much larger than the Senate, the House has acted earlier to control floor debate and the delay and blocking of floor votes. | |||
| ==Historical Backdrop== | |||
| {{dablink|For more on the history of the Filibuster in U.S. politics see }} | |||
| The Senate has many ways to frustrate a Presidential appointment other than the filibuster; there is no Constitutional or legal requirement for the Senate to actually hold an up-or-down vote on judicial nominees. A group of Senators may tie up the vote in the ] indefinitely by various means, or actually vote it down; the vote can be ] or otherwise delayed on the floor; holds can be obtained; and a filibuster can be conducted, among other tactics. | |||
| When the first U.S. ] met in ], the filibuster was not an option. The Senate adopted rules allowing them "to move the previous question," ending debate and proceeding to a vote. In ], this rule was eliminated, removing that mechanism for ending debate and clearing the way for the filibuster. The first Senate filibuster occurred in ]. In 1917, a rule allowing for the ] of debate (ending a filibuster) with the vote of two-thirds of Senators present. In 1949, this was changed to two-thirds of the total membership, then in 1959 to two-thirds of those present and voting. In ], the cloture requirement was lowered to the current requirement of three-fifths of total membership. | |||
| In 1968, Republican Senators led a four-day filibuster and successfully blocked ]'s nomination of ] to be elevated from Associate Justice of the Supreme Court to ]. The Democrats were the majority party at the time, and made a cloture motion to move the nomination to a floor vote. It did get a simple majority, but nowhere near the 66 votes then needed to end debate. Voting against cloture were 24 Republicans and 19 Democrats. Republicans cite the 19 Democratic votes as evidence of bipartisan support for the filibuster. Democrats point out that all 19 were from the bloc of southern Democrats (the so called ]) that had teamed with Republicans to filibuster civil rights legislation in the 1960s. | |||
| Another type of filibuster used in the ]: the ]—using ] to consume time, since they are not counted as part of the limited time provided for debate) — was eliminated as an effective delay technique by a rule change in ]. | |||
| There are nominees who have been threatened with a filibuster, but these nominees did eventually get a vote. Democrats did not filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991. Republicans almost certainly would not have been able to muster the votes needed to overcome such a filibuster. | |||
| Before 2002, there were other procedural methods that allowed a minority party to block judicial nominations. The two most prevalent methods were "blue slips" and "holds", both of which prevent a nomination from leaving the ] to proceed to the full Senate for debate and confirmation. Both methods allow just a few senators, and in some cases only one, to block a nomination. | |||
| ===Clinton administration=== | |||
| In ], Democrats held the White House and a majority of the Senate. The ''New York Times'' editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This (is a) relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." There was no attempt to rewrite Senate rules for confirmation at that time. | |||
| Republicans made frequent use of these procedures under the Clinton Administration, but under the Bush Administration have modified Senate rules to render both methods ineffective. Under current rules, the minority party has only one remaining procedural block with which to counter a nomination: the filibuster. | |||
| In ], then President Clinton nominated Judge ] to the 9th Circuit of the ]. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an filibuster on ], ], which failed when only 14 Republicans approved it. ] was among those who voted to filibuster Paez. Paez was ultimately confirmed with a simple majority. | |||
| ===Blue Slips=== | |||
| ===George W. Bush administration=== | |||
| Before a nomination is passed out of the ], it is screened by both senators from the nominee's home state, who endorse or object to the nominee on a piece of paper called a blue slip. Until 1995, a nominee would not be removed from committee consideration unless both home-state senators objected to the nominee. (PDF) | |||
| When President George W. Bush took office there were dozens of federal court vacancies, which Democrats contend Pres. Clinton had been unable to fill due to Republican blocking of his nominees. Republicans held a majority in the Senate during the last 6 years of the Clinton administration. Democrats assert that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations. Further, that the Republicans' record in the confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate. | |||
| In ], Republicans gained control of the Senate and modified the rules governing the judiciary committee process. The first such modification pertained to the blue slip rule. In the ], 18 states had split Senate delegations, one Republican and one Democrat. Sen. ] (R-Utah), chairman of the Judiciary Committee, changed the rule so that a nominee would be removed from consideration if only one of the home-state senators objected. The wording on the blue slips was also revised to say, “o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.” This allowed senators to delay nominations by not returning blue slips. Some of President Clinton's nominees were delayed years waiting for blue slips to be returned from Republican senators. | |||
| One of the arguments made by Republicans opposed to the ''nuclear option'' was that sooner or later, history dictates that Democrats will return to the majority. Thus the GOP will eventually need tools like the filibuster to block the appointment of an extremist judge for the Democratic party. | |||
| After President ] took office in 2001, Hatch reversed positions on the "two blue slip" requirement and rewrote the rule to require both home-state senators to object to a nominee in order to block the nomination. The text of the blue slip was also modified to remove the sentence saying no further proceedings would be scheduled until the blue slip was returned to the committee. These changes were overturned when Democrats regained control of the Senate, after ] (I-Vermont) changed his party alignment. | |||
| ===Lines are Drawn=== | |||
| In March ], President Bush announced that the administration will no longer seek the American Bar Association’s evaluations of federal judicial candidates, ending a tradition started by Eisenhower in 1953. Despite this, the ABA’s committee continues to provide the public service. Democratic senators all favor the ABA input. | |||
| After the 2002 congressional elections, Republicans returned to majority party status. At that time, the blue slip requirements were again changed to require two dissenting blue slips to reject a nominee before the committee. Nevertheless, there have been hearings in which two dissenting blue slips were submitted but the nomination process was not halted. In 2003, the Judiciary Committee heard testimony on the fitness of ]. This occurred after both home-state senators, Senators ] and ], had objected to Saad's nomination . With no committee options left to derail nominations to which they objected, Democrats began threatening to filibuster nominations once they reached the full floor of the Senate. | |||
| During his first term, ] ] nominated 46 people to federal appeals court seats, of which 36 were confirmed. Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. At the beginning of his second term, Bush resubmitted seven of the 10 names. Senate ] ] (D-Nev.) vowed to fight their confirmation. Senate Majority Leader Bill Frist threatened to use the nuclear option to get them confirmed. | |||
| === |
===Holds=== | ||
| A "hold" is a procedure in which a senator communicates to the Senate leadership that he or she would withhold support for a if a matter were to be brought before the Senate. The reason this has power is that in the absence of a powerful ] like the ] has, the Senate's ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments (if any) may be offered, and when votes will take place. The quiet threat of a hold ordinarily is enough to take an issue -- including a judicial nomination -- off of the agenda, at least temporarily. | |||
| In April 2005, Democrats were blocking the confirmation of 7 nominees, all of whom Democrats claimed were too extreme for a lifetime appointment. President Bush's most controversial nominees were ] and ]. Citing descriptions like "]" (American Bar Association), "extreme" (''New York Times''), and "]" (CivilRights.org), Senate Democrats, in April 2005, had vowed to fight Brown and Owen's confirmations to the courts. | |||
| Republican Senators used this method to postpone votes on nominees in the Judiciary Committee under the Clinton Administration. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. | |||
| *]. | |||
| :'''Opposition:''' The '']'' calls Brown "A bad fit for a key court". Brown's alleged ] and a style bordering on vituperation earned her only a ''qualified'' rather than ''well qualified'' rating from the ]. Some committee members found her unfit for the appeals court. '']'' editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." ] President ] described Janice Rogers Brown as the "far right's dream judge." . Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of over 100 organizations that oppose Brown's confirmation is given . | |||
| :'''Support:''' Supporters counter that Brown has opposed racial profiling () and won election and then re-election (with 75% of the vote) to the Supreme Court of California. Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," and that her record evinces a sensitivity to civil rights. In 2000, she followed the Supreme Court's lead in ], striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to ]. | |||
| Anonymous floor holds were abolished in 2003 . | |||
| *Justice ]. | |||
| :'''Opposition:''' The '']'' characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before it—while its justices do not recuse themselves from those cases.(PDF file) ''The New York Times'' said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts." The ] (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law." A list of 60 organizations that oppose Owen's confirmation is given | |||
| :'''Support:''' Greg Abbott, attorney general of Texas and a former justice on the Texas supreme court, disputes the above charge from the ]. Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. In 2000, she was re-elected to the Texas Supreme Court with 84% of the vote. | |||
| == |
==50 Percent Majority== | ||
| The main argument by Republicans supporting the nuclear option is that because the U.S. Constitution does not explicitly require a three-fifths majority vote for confirmation of judicial nominees, it implies that a simple majority is sufficient. Therefore, supporters argue that the nuclear option would bring current rules in line with the original framers' intent. Because of this, many supporters prefer to call it the "constitutional option". Supporters argue that the filibuster of Bush's nominees effectively establishes a 60 vote threshold for approval of judicial nominees instead of the 50 vote standard required by an up-or-down vote . A fair number of existing justices were confirmed with less than 60 votes, including existing ] Justice ] (confirmed in a 52-48 vote in 1991). | |||
| Under pressure by the White House and social conservatives, Senate Majority Leader Bill Frist signaled his readiness to pull the trigger on the 'nuclear option' to push through Bush's appellate court choices blocked by the Democrats' threat of filibuster. | |||
| However, opponents counter that the Constitution does specify a two-thirds majority for other Senate tasks, and the Constitution gives the Senate the power to make its own rules. The history of Senate rules shows that filibusters were unlimited in 1806 (requiring 100% support in the Senate), and that cloture could be achieved with a two-thirds majority in 1917 and a three-fifths majority in 1975. So opponents argue that the Senate has a long tradition of requiring broad support to do business. | |||
| In the ], ] hold 55 seats, ] 44 and Independents hold one (as of ]). | |||
| ==60 Percent Majority== | |||
| Republican pollster ] found that 82 percent of registered voters believe that "well-qualified" nominees should receive an ]. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt. Democratic pollster Westhill Partners found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster — thereby eliminating the current system of checks and balances on the majority party." | |||
| {{sectNPOV}} | |||
| Rather than require the President to nominate Judges who get broad support from both parties in the Senate (60 out of 100 Senators), opponents claim the nuclear option would allow the President to nominate partisan Judges supported only by 50 Republican Senators plus the Vice President. Currently, Republicans hold 55 of 100 seats in the Senate, and Democrats claim the nuclear option is an attempt by Senate Republicans to hand confirmation power to themselves. <!--Before you declare this NPOV, this language is from Al Gore's speech (April 27, 2005) "(the nuclear option) is about the desire of the administration (Republican) and the Senate leadership (Republican) to stifle debate in order to get what they want when they want it. What is involved here is a power grab", "aggressive new strain of right-wing (Republican) religious zealotry", "if the justices ... had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes"--> | |||
| ===Political Motivations=== | |||
| Many Democrats view Frist's threats to push the nuclear option button to be more about his plan to run for president in 2008 than about the qualifications of the few nominees currently blocked in the Senate. Quoting from : | |||
| :''Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base. By pouncing on Arlen Specter after the November election to demand that the Pennsylvania senator pledge his support for the president's judicial nominees as prospective head of the Senate judiciary committee, Frist made an obvious overture to Christian conservatives.'' <!--to back up that Frist is courting the religious right, the next section should be about how the religious right supports the nuclear option--> | |||
| Of the 9 U.S. Supreme Court Justices seated as of May 2005, 8 Justices were confirmed by more than 60 percent of the Senate. Most were confirmed unanimously or nearly unanimously. In contrast to these confirmations, Priscilla Owen was confirmed 55-43. | |||
| ], founder of ] and several other prominent Christian conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. In a May 1, 2005 interview on ABC's 'This Week with George Stephanopoulos', Pat Robertson said that Democratic judges are a greater threat to U.S. unity and stability than ], ] or Civil War. On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist - a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option. In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. On May 24, 2005, after the compromise negotiated between 14 Senators was announced, Dobson, said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats." | |||
| <!--Where's the section on the Judiciary Committee? Insert here--> | |||
| On the ] campus, outside the Frist Campus Center (named for Senator ]'s family) students staged a protest against the nuclear option by "filibustering" for two weeks non-stop, beginning on April 26, 2005. Other protests took place at ], ], ], ] and ]. Students at the ] organized a counterprotest "point of order" in support of ending judicial filibusters on ], ]. | |||
| ===Obstruction and a "Power Grab"=== | |||
| In response to claims of "Senate obstructionism," Senate Minority Leader ], D-Nev, pointed out that only 10 of 214 nominations by ] have been turned down. Former President ] called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." George W. Bush has a better record of having his judicial nominees approved than any President in the past 25 years. One of Democrats' biggest complaints has been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1994-2000.) On ], 2005, Former Vice President ] said, "Their grand design is an all-powerful executive using a weakened ] to fashion a compliant judiciary in its own image. ... What is involved here is a power grab." | |||
| ===Democratic Proposal=== | |||
| On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas Griffith. Democrats cited this offer as a goodwill gesture to show that they are willing cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation." | |||
| Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up." Republicans contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they deemed "extremist," even when those nominees enjoyed the support of all Republican Senators. Thus, that Reid's offer did not resolve the problems that led to consideration of the nuclear option in the first place. Republicans also contend that the Democrats' judicial filibusters have already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster. | |||
| ===Republican Counter-Proposal=== | |||
| Senate ] ] (R-Tenn) floated a Republican counter-offer. In exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (a nod to President Clinton's nominees who were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer calling it, "a big wet kiss to the far right." | |||
| ===Critical Mass=== | |||
| On Friday, May 20th, a cloture vote for the nomination of Janice Rogers Brown was rescheduled for Tuesday, May 24th. The failure of this cloture vote would be the beginning of the ''nuclear option'', immediately followed by the asking for the ruling of the Chair on the Constitutionality of the Filibuster. On ], ], Majority Leader Frist called for a vote on ]. This threatened to trigger the ''nuclear option''. | |||
| ==Moderates and the "Gang of 14"== | |||
| Senator ] (R-AZ) and Senator ] (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees (Janice Rogers Brown, William Pryor, and Priscilla Owen) while preserving the judicial filibuster. Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote. They announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances". The moderate block of Senators that agreed to the compromise included, ], ], ], ], ] and ] for the Republicans. ], ], ], ], ] and ] for the Democrats. This group was quickly dubbed "the ]" in various blogs and news outlets. | |||
| The bipartisan group was large enough to prevent the nuclear option from succeeding, and also large enough to reach cloture on a Democratic filibuster. It states, in part: | |||
| :''..we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.'' | |||
| As a result of this agreement, Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45. | |||
| ==Differing Standards for Consent== | |||
| The arguments for or against the nuclear option are essentially over whether a simple majority (51/100) of the Senate should be able to confirm a judicial nominee, or whether a three-fifths vote (60/100) should be required, as required for passage of a large amount of Senate business. | |||
| ===A Simple Majority=== | |||
| The U.S. Constitution does not explicitly require either a two-thirds or three-fifths majority vote for confirmation of nominees. Supporters of this standard believe it implies that a simple majority is sufficient; they contrast this against the Constitution's language for Senate confirmation of treaties, which appears within the same clause, explicitly requiring a two-thirds majority. | |||
| Therefore, supporters argue that the nuclear option would bring current rules in line with the framers' ]. Because of this, many supporters now prefer to call the nuclear option the "constitutional option". They argue that the filibuster of Bush's nominees effectively establishes precedent for a 60 vote threshold for approval of judicial nominees instead of the 50 vote standard required by an up-or-down vote. A number of existing Judges and Justices were confirmed with less than 60 votes, including ] Justice ] (confirmed in a 52-48 vote in 1991). | |||
| However, opponents of the nuclear option point to Senator Bill Frist's vote to filibuster Paez in 2000 as evidence that Frist does in fact support the idea of a 60-vote threshold when it suits him. When a vote for cloture on the confirmation of Paez was called, 14 Senators voted to continue the filibuster, including Frist. | |||
| ===Three-Fifths Majority=== | |||
| Currently, Republicans hold 55 of 100 seats in the Senate, and Democrats claim the nuclear option is an attempt by Senate Republicans to hand confirmation power to themselves. Rather than require the President nominate someone who will get broad support in the senate, the nuclear option would allow Judges to not only be "nominated to the Court by a Republican president, but also be confirmed by only Republican Senators in party-line votes." <!--from Al Gore's speech (April 27, 2005) "nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes" "(the nuclear option) is about the desire of the administration (Republican) and the Senate leadership (Republican) to stifle debate in order to get what they want when they want it. What is involved here is a power grab", "aggressive new strain of right-wing (Republican) religious zealotry"--> <!--"the Republican majority to rubberstamp the handful of nominees" "to alter these procedures unilaterally (Republican-only) would be an unprecedented abuse of power."--> | |||
| Of the 9 U.S. Supreme Court Justices seated as of May 2005, 6 were confirmed with the support of 90 or more Senators, 2 were confirmed with at least the support of 60 senators, and only 1 (Thomas) was confirmed with the support of less than 60 Senators. In contrast to this broad, bipartisan support, Bush's more controversial nominees were confirmed by a narrow majority along party lines. Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45. | |||
| {| border="1" cellpadding="2" | {| border="1" cellpadding="2" | ||
| | Name | | Name | ||
| | Date Confirmed |
| Date Confirmed | ||
| | Senate Vote | | Senate Vote | ||
| | reference | | reference | ||
| |- | |- | ||
| | Rehnquist | |||
| ! colspan="4" | June 2005 Supreme Court Justices | |||
| | September 17, 1975 | |||
| |- | |||
| | Rehnquist | |||
| | September 17, 1986 | |||
| | 65-33 | | 65-33 | ||
| | | | | ||
| |- | |- | ||
| | Stevens | | Stevens | ||
| | December 17, |
| December 17,1975 | ||
| | 98-0 | |||
| | unanimous | |||
| | | | | ||
| |- | |- | ||
| | O'Connor |
| O'Connor | ||
| | September 21, 1981 | | September 21, 1981 | ||
| | 99-0 | |||
| | unanimous | |||
| | | | | ||
| |- | |- | ||
| | Scalia | | Scalia | ||
| | September 17, 1986 | | September 17, 1986 | ||
| | 98-0 | |||
| | unanimous | |||
| | | | | ||
| |- | |- | ||
| | Kennedy | | Kennedy | ||
| | February 3, 1988 | | February 3, 1988 | ||
| | unanimous | | unanimous | ||
| Line 144: | Line 92: | ||
| | October 2, 1990 | | October 2, 1990 | ||
| | 90-9 | | 90-9 | ||
| | | |||
| | | |||
| |- | |- | ||
| | Thomas | | Thomas | ||
| | October 15, 1991 | | October 15, 1991 | ||
| | 52-48 | | 52-48 | ||
| | | |||
| | | |||
| |- | |- | ||
| | Ginsburg | | Ginsburg | ||
| | August |
| August 10, 1993 | ||
| | 97-3 | | 97-3 | ||
| | | |||
| | | |||
| |- | |- | ||
| | Breyer | | Breyer | ||
| | |
| May 14, 1994 | ||
| | 87-9 | | 87-9 | ||
| | | |||
| | | |||
| |- | |||
| ! colspan="4" | Bush nominees | |||
| |- | |||
| | Priscilla Owen | |||
| | May 25, 2005 | |||
| | 55-43 | |||
| | | |||
| |- | |||
| | Janice Rogers Brown | |||
| | June 8, 2005 | |||
| | 56-43 | |||
| | | |||
| |- | |||
| | William H. Pryor | |||
| | June 9, 2005 | |||
| | 53-45 | |||
| | | |||
| |} | |} | ||
| The text of the Constitution requires a two-thirds majority in the Senate for confirming treaties, expelling one of its members, and concurring in the proposal of Constitutional Amendments . In all other matters, the Constitution gives the Senate the power to make its own rules. Starting with the first Senate in ], the rules left no room for a filibuster; a simple majority could move to bring the matter to a vote. However, in ], the rule allowing a majority to bring the previous question ceased to exist. The filibuster became possible, and since any Senator could now block a vote, 100% support was required to bring the matter to a vote. A rule change in ] introduced ], permitting a two-thirds majority to end debate, and a further change in ] reduced the cloture requirement to three-fifths. Supporters of the right to filibuster argue that the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster, and that this protects the minority. | |||
| == |
==Advice and Consent== | ||
| ===Advice and Consent=== | |||
| Supporters of the nuclear option claim that Democrats are obstructing the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush has nominated forty-six candidates to federal appeals courts. Thirty-six had been confirmed. 10 were blocked and 7 were renominated in Spring 2005. Democrats point out that 63 of President Clinton's 248 nominees (40 of which were federal appeals court nominees) were blocked via procedural means at the committee level, denying them a confirmation vote and leaving the positions available for Bush to fill. | Supporters of the nuclear option claim that Democrats are obstructing the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush has nominated forty-six candidates to federal appeals courts. Thirty-six had been confirmed. 10 were blocked and 7 were renominated in Spring 2005. Democrats point out that 63 of President Clinton's 248 nominees (40 of which were federal appeals court nominees) were blocked via procedural means at the committee level, denying them a confirmation vote and leaving the positions available for Bush to fill. | ||
| Line 192: | Line 121: | ||
| :''We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.'' | :''We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.'' | ||
| ==Political Motivations== | |||
| ===A Larger Plan?=== | |||
| Many Democrats view Bill Frist's threats to push the nuclear option to be more about his plan to run for president in 2008 than about the qualifications of the few nominees currently blocked in the Senate. Conversely many Democrats and Republicans believe John McCain was motivated by his desire to block Frist from garnering support from conservatives anticipating a McCain riun in the GOP primaries in 2008. Quoting from : | |||
| :''Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base. By pouncing on Arlen Specter after the November election to demand that the Pennsylvania senator pledge his support for the president's judicial nominees as prospective head of the Senate judiciary committee, Frist made an obvious overture to Christian conservatives.'' <!--to back up that Frist is courting the religious right, the next section should be about how the religious right supports the nuclear option--> | |||
| ], founder of ] and several other prominent Conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist - a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option. In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. On May 24, 2005, after the compromise negotiated between 14 Senators was announced, Dobson, said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats." | |||
| ==Blocking "Extremist" Judges== | |||
| In April 2005, Democrats were blocking the confirmation of 7 nominees, all of whom Democrats claim are too extreme for a lifetime appointment despite their support of he once ACLU General Counsel ] judged as too extreme by many. President Bush's most controversial nominees are Janice Rogers Brown and Priscilla Owen. Citing descriptions like "dogmatic" (American Bar Association), "extreme" (''New York Times''), and "activist judge" (CivilRights.org), Senate Democrats, in April 2005, had vowed to fight Brown and Owen's confirmations to the courts. | |||
| *]. | |||
| :'''Opposition:''' The '']'' calls Brown "A bad fit for a key court". Brown's alleged ] and a style bordering on vituperation earned her only a ''qualified'' rather than ''well qualified'' rating from the ]. Some committee members found her unfit for the appeals court. '']'' editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." ] President ] described Janice Rogers Brown as the "far right's dream judge." . Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of over 100 organizations that oppose Brown's confirmation is given . | |||
| :'''Another view:''' Supporters counter that Brown has opposed racial profiling () and won election and then re-election (with 75% of the vote) to the Supreme Court of California. Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," and that her record evinces a sensitivity to civil rights. In 2000, she followed the Supreme Court's lead in ], striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to ]. | |||
| *Justice ]. | |||
| :'''Opposition:''' The '']'' characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before it—while its justices do not recuse themselves from those cases.(PDF file) ''The New York Times'' said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts." The ] (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law." A list of of 60 organizations that oppose Owen's confirmation is given | |||
| :'''Another view:''' Greg Abbott, attorney general of Texas and a former justice on the Texas supreme court, disputes the above charge from the ]. Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. In 2000, she was re-elected to the Texas Supreme Court with 84% of the vote. | |||
| ==Barring the American Bar Association== | |||
| In March 2001, President Bush announced that the administration will no longer seek the American Bar Association’s evaluations of federal judicial candidates, ending a history started by Eisenhower in 1953. Despite this, the ABA’s committee continues to provide the public service. Democratic senators all favor the ABA input. The ABA committee rates each nominee ''"Well Qualified,"'' ''"Qualified"'' or ''"Not Qualified."'' While some nominees receive majority/minority ratings, the majority rating is the official rating of the Committee. | |||
| The ABA ratings of Article III Judicial nominees for the 109th Congress, updated April 2005, are listed . Three nominees on that list are rated "Not Qualified" by a ''minority'' of the ABA committee: Janice Brown, William Pryor and Thomas Griffith. However, the ''majority'' of the ABA committee found three of those four - Brown, Pryor and Griffith - "Qualified". Priscilla Owen was unanimously found "well qualified" by the ABA committee. | |||
| While Republican pollster ] found that 82 percent of registered voters believe that "well-qualified" nominees should receive a Senate vote.(both PDF files), the ABA gave only 7 out of the 21 judicial nominees a unanimous rating of "well qualified". | |||
| ==Obstructing a Power Grab== | |||
| In response to claims of "Senate obstructionism," Senate Minority Leader ], D-Nev, pointed out that only 10 of 214 nominations by ] have been turned down. Former President ] called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." George W. Bush has a better record of having his judicial nominees approved than any President in the past 25 years. One of Democrats' biggest complaints has been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1994-2000.) On ], 2005, Former Vice President ] said, "Their grand design is an all-powerful executive using a weakened ] to fashion a compliant judiciary in its own image. ... What is involved here is a power grab." | |||
| ==Offers of Cooperation Rejected== | |||
| As a goodwill gesture to show that they are willing cooperate with Republicans, on May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's less controversial judicial nominees, former Senate lawyer Thomas Griffith. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation." Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republican intent to use the nuclear option as an "all or nothing" weapon. | |||
| ==Nuclear Option Legality== | |||
| As for the legality of the nuclear option, in a ''Christian Broadcasting Network'' interview, Senator Reid claimed that "the parliamentarian of the United States Senate has said it (the nuclear option) is illegal." Washington D.C. newspaper ''The Hill'' reports that a ] report "leaves little doubt" that the nuclear option would '''not''' be based on previous precedents of the Senate. | |||
| ==Democratic and Public Opposition== | |||
| Some also believe that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. As of April, 2005, Republican presidents have appointed a majority of the judges in 10 of the 13 federal appeals courts, 7 of the 9 justices on the Supreme Court and every ] since the ]. | Some also believe that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. As of April, 2005, Republican presidents have appointed a majority of the judges in 10 of the 13 federal appeals courts, 7 of the 9 justices on the Supreme Court and every ] since the ]. | ||
| It is expected that the entire Democratic caucus will oppose the nuclear option. Many prominent Democrats have come out against the nuclear option, and none have come out in support of it. | |||
| ===Legitimacy of Filibustering Judicial Nominees=== | |||
| ==Compromise== | |||
| ===Democratic Proposal=== | |||
| On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas Griffith; Democrats cited this offer as a goodwill gesture to show that they are willing cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation." | |||
| Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republicans' intent to use the nuclear option as an "all or nothing" weapon. Republicans also contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they unilaterally deemed "extremist," even when those nominees enjoyed the support of all 55 Republican Senators. Thus, Republicans asserted that Reid's offer did not solve, going forward, the problems that led to consideration of the nuclear option in the first place. Republicans also contend that the Democrats' judicial filibusters have already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster. Thus, Republicans argue that any talk of compromise should take into account that Democrats have already kept those three judges off the bench. | |||
| ===Republican Counter-Proposal=== | |||
| Senate Majority leader Bill Frist floated a Republican counter-offer, in which, in exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (the main reason that Democrats complain many of President Clinton's nominees were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer, calling it "a big wet kiss to the far right." | |||
| ===The "Gang of 14"=== | |||
| On Friday, May 20th, a cloture vote for the nomination of Janice Rogers Brown was scheduled for Tuesday, May 24th. The failure of this cloture vote would be the beginning of the nuclear option, immediately followed by the asking for the ruling of the Chair on the Constitutionality of the Filibuster. | |||
| Senator ] (R-AZ) and Senator ] (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees while preserving the judicial filibuster. Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote. | |||
| The moderate block of Senators that agreed to the compromise included, on the Republican side, ], ], ], ], ], ] and ], and on the Democratic side, ], ], ], ], ], ] and ]. This group was quickly dubbed "the ]" in various blogs and news outlets. | |||
| ==Legitimacy of Filibustering Judicial Nominees== | |||
| In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that ] ''requires'' two-thirds majorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, ], Section V of the Constitution permits and mandates that each house of Congress set up its own rules. Republicans counter that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement. Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided." | In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that ] ''requires'' two-thirds majorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, ], Section V of the Constitution permits and mandates that each house of Congress set up its own rules. Republicans counter that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement. Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided." | ||
| Republicans point out that several Democrats once opposed the filibuster on judicial nominees, and have only recently changed their views as they have no other means of stopping Bush's judicial appointees. | Republicans point out that several Democrats once opposed the filibuster on judicial nominees, and have only recently changed their views as they have no other means of stopping Bush's judicial appointees. | ||
| Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation |
Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continue to support the filibuster for general legislation--the current Republican leadership insists the proposed rule change only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans state that there is a difference between the filibustering of legislation -- which affects only the Senate's own constitutional prerogative to consider new laws -- and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch. | ||
| Republican Senators, including ] himself, have filibustered in the past to block judicial nominees: | |||
| *In 1996, Clinton nominated Judge ] to the 9th Circuit of the ]. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an filibuster on ], ], which failed when only 14 Republicans approved it. Bill Frist was among those who voted to filibuster Paez . Paez was ultimately confirmed with a simple majority. | |||
| *In 1968, Republican Senators led a four-day filibuster and successfully blocked ]'s nomination of ] to be elevated from Associate Justice of the Supreme Court to ]. Some Republicans now claim this nomination would have likely failed on a simple up or down vote, but there is no way to know since such a vote was prevented by the filibuster. The Democrats controlled the Senate and Johnson was known for his legislative skills. A cloture motion to move the nomination to a floor vote did get a simple majority, but nowhere near the 66 votes then needed to end debate. Voting against cloture were 24 Republicans and 19 Democrats. Republicans cite the 19 Democratic votes as evidence of bipartisan support for the filibuster, unlike the current filibusters of President Bush's nominees. Democrats point out that all 19 of the Democrats who voted against cloture were from the bloc of southern Democrats (the so called ]) that had teamed with Republicans to filibuster civil rights legislation in the 1960s. Republicans also point out that the filibuster of Justice Fortas was justified by the filibusterers as based on his alleged ethics violations, and that the allegations of ethical improprieties actually led to his resignation from the Supreme Court. Democrats note that Justice Fortas was never charged with violating any laws and that similar ethical issues, accepting gifts, have been raised against Judge Owen (and dismissed by Republicans who claim that she did nothing improper). | |||
| The Fortas filibuster marked the first use of this tactic against a judicial nominee in U.S. history. It was the only successful judicial filibuster until the Democrats use of the tactic against Bush nominees. Before the Fortas filibuster the Senate would defer to a president's wishes on court appointments, even when it was controlled by the other party. Since the Fortas precedent, both parties have fought appointments in the Senate, but none had actually been filibustered again until the Republicans revived the tactic in 1996. | |||
| There '''are''' three nominees whom some Republicans discussed filibustering, but Republicans argue that this was merely a threatened filibuster, as these nominees did eventually get a vote.(PDF file). Democrats counter that Republicans are attempting to redefine "filibuster" to mean "successful filibuster" and point out that Republicans did filibuster but that Democrats secured enough votes to end it. While Democrats often cite as an exception Lyndon B. Johnson's 1968 nomination of ] to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States, Justice Fortas was the subject of a breaking ethics scandal and Republicans insist that he did not have the support of a majority of Senators -- and in fact, the ethics charges swirling about him led him to resign from the Supreme Court after his nomination to be Chief Justice died. Moreover, Despite these possible exceptions, the systematic filibuster of nominees with confirmed support from a majority of Senators sets a new standard. Democrats did not even filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991, even though Republicans almost certainly would not have been able to muster the votes to overcome such a filibuster. | |||
| In 1995, when Democrats held the White House and a majority of the Senate, the New York Times editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." (Democrats note that even with Republicans blocking confirmations in 1995, Senate Democrats never attempted to rewrite Senate rules for confirmation.) | |||
| When President George W. Bush took office there were dozens of federal court vacancies, which Democrats contend President Clinton had been unable to fill due to Republican blocking of his nominees. Democrats assert that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations. Republicans held a majority in the Senate during the last 6 years of the Clinton administration, and Democrats claim that the Republicans' record in the confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate. | |||
| One of the arguments made by Republicans opposed to the nuclear option was that sooner or later, history dictates that Democrats will return to the majority, and thus the GOP might need tools to block the appointment of an extremist judge for the Democratic party. Following the ] compromise, at least one Democrat partisan took up the corollary to this point, and suggested that the Democrats' should have taken the opportunity to rid the Senate of the filibuster, a tool he characterized as a "guarantee that the United States won't pass legislation extending health insurance to all its citizens" and "an inherently reactionary tool that, over the long term, has impeded and will continue to impede activist liberal government". | |||
| ==Protests== | |||
| On the ] campus, outside the Frist Campus Center (named for Senator ]'s family) students staged a protest against the nuclear option by "filibustering" for two weeks non-stop, beginning on April 26, 2005. Other protests took place at ], ], ], ] and ]. Students at the ] organized a counterprotest "point of order" in support of ending judicial filibusters on ], ]. | |||
| ==Alternate Vocabulary== | |||
| ] ] first suggested using a ruling of the chair to defeat a filibuster in ] ], the code word for the plan was "Hulk." Weeks later Senator ] coined the term ''nuclear option''. ('']'', May 10, 2003, "Judicial filibuster rule change faces high hurdle in Senate," Charles Hurt). Subsequently, Senator ] again used the term "nuclear option" in an interview with the . The maneuver was called the "nuclear option" because it was seen as a last resort with possibly catastrophic consequences for both sides. The term's association to ] is intended to suggest the maneuver being a 'last resort', as well as the extreme consequences some people think the rules change would produce. The term was partially abandoned by some of its supporters, who preferred to call it '''"the Constitutional option"''' or '''"the Byrd option"''' To make matters more confusing, in April 2005 Republicans began to attempt to redefine the 'nuclear option' as a description of the Democratic filibuster, rather than the rule change that would end it. Important Republicans in the controversy included Majority Leader Bill Frist, who was one of the strongest opponents of the filibuster (and whose support from the ] for his 2008 election bid may have depended on ending it), and the those like John McCain that would have broken with their party in opposition to the nuclear option, possibly denying Frist the necessary majority. | |||
| ==See Also== | ==See Also== | ||
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| * | * | ||
| ====Myth & Fact Sheets==== | ====Opposed to the Nuclear Option: Myth & Fact Sheets==== | ||
| * | * | ||
| * | * | ||
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| * | * | ||
| ====Myth & Fact Sheets==== | ====Support of the Nuclear Option: Myth & Fact Sheets==== | ||
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| * | * | ||
| * | * | ||
| *M. Gold & D. Gupta, ''The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster in the Harvard Journal of Law and Public Policy''; (2004). N.b., Gold & Gupra's "constitional option" is ''not'' the same procedure discussed in the article about. However, because their procedure has similar effect, much of the historical discussion of the filibuster is directly relevant. | |||
| * | * | ||
Revision as of 22:21, 21 July 2005
The "nuclear option" in American politics during 2005 refers to a proposed change to the interpretation of the rules of the U.S. Senate for judicial confirmations. Currently, Senate rules allow any member to prevent a confirmation vote by staging a filibuster, which requires a three-fifths majority (60 senators) to break (via a cloture motion). The nuclear option would allow a simple majority (51 out of 100 senators) to end a judicial filibuster. Once cloture is achieved, the nominee can be confirmed by a simple majority vote.
The nuclear option would affect nominees to district and appeals courts, and, perhaps most importantly, the Supreme Court. Chief Justice William Rehnquist is expected to step down during Bush's presidency -- he underwent throat surgery in October 2004 to treat his thyroid cancer -- and if the nuclear option were enacted, Bush's nomination to replace him could be confirmed by a simple majority of 51 Republican senators.
Recent History
Republicans currently hold 55 seats, while Democrats hold 44 seats. The sole independent, Jim Jeffords, has one vote.
During his first term, President George W. Bush nominated 46 people to federal appeals court seats, of which 36 were confirmed. Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. At the beginning of his second term, Bush resubmitted seven of the 10 names. Senate Minority Leader Harry Reid (D-Nev.) vowed to fight their confirmation.
On May 23, 2005, Senate Majority Leader Bill Frist (R-Tenn) called for a vote on one of the blocked nominees, Priscilla Owen, and threatened to use the nuclear option to overcome a Democratic filibuster.
Although Senate rules can technically only be changed by a two-thirds (67) vote, Frist planned to rise to a point of order that filibusters of judicial nominees are unconstitutional and/or otherwise improper. The Senate's presiding officer, likely Vice President Dick Cheney, could then rule on the point of order, which Cheney would be expected to sustain. The Democrats could then appeal the decision of the chair, a motion which the Republicans would immediately move to lay on the table. The motion to lay on the table is non-debatable, and would require a simple majority vote to sustain the ruling of the chair. With success, Republicans would establish a precedent that judicial filibusters are out of order.
On May 23, 2005, Senator John McCain (R-Ariz.) and Senator Ben Nelson (D-Neb.) announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances". The moderate block of Senators that agreed to the compromise included, on the Republican side, John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee, and on the Democratic side, Ben Nelson, Joe Lieberman, Robert Byrd, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar. The bipartisan group is large enough to prevent the nuclear option from succeeding and also large enough to reach cloture on a Democratic filibuster. The agreement is available here (pdf). It states, in part:
- we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
As a result of this agreement, on May 25, 2005, Priscilla Owen, one of the original blocked nominees, was confirmed as federal judge.
Senate Tradition
There is a long history of contentious disputes over the rules used to delay or block floor votes in the United States Congress. Established procedures have been overturned at several points in the history of both Houses.
In the House of Representatives, the filibuster (the right to unlimited debate) was used until 1842, when a permanent rule limited the duration of debate. The disappearing quorum was a tactic used by the minority until an 1890 rule eliminated it. As the membership of the House grew much larger than the Senate, the House has acted earlier to control floor debate and the delay and blocking of floor votes.
When the first U.S. Senate met in 1789, the filibuster was not an option. The Senate adopted rules allowing them "to move the previous question," ending debate and proceeding to a vote. In 1806, this rule was eliminated, removing that mechanism for ending debate and clearing the way for the filibuster. The first Senate filibuster occurred in 1837. In 1917, a rule allowing for the cloture of debate (ending a filibuster) with the vote of two-thirds of Senators present. In 1949, this was changed to two-thirds of the total membership, then in 1959 to two-thirds of those present and voting. In 1975, the cloture requirement was lowered to the current requirement of three-fifths of total membership.
Another type of filibuster used in the Senate: the post-cloture filibuster—using points of order to consume time, since they are not counted as part of the limited time provided for debate) — was eliminated as an effective delay technique by a rule change in 1979.
Before 2002, there were other procedural methods that allowed a minority party to block judicial nominations. The two most prevalent methods were "blue slips" and "holds", both of which prevent a nomination from leaving the Senate Judiciary Committee to proceed to the full Senate for debate and confirmation. Both methods allow just a few senators, and in some cases only one, to block a nomination.
Republicans made frequent use of these procedures under the Clinton Administration, but under the Bush Administration have modified Senate rules to render both methods ineffective. Under current rules, the minority party has only one remaining procedural block with which to counter a nomination: the filibuster.
Blue Slips
Before a nomination is passed out of the Senate Judiciary Committee, it is screened by both senators from the nominee's home state, who endorse or object to the nominee on a piece of paper called a blue slip. Until 1995, a nominee would not be removed from committee consideration unless both home-state senators objected to the nominee. (PDF)
In 1995, Republicans gained control of the Senate and modified the rules governing the judiciary committee process. The first such modification pertained to the blue slip rule. In the 104th Congress, 18 states had split Senate delegations, one Republican and one Democrat. Sen. Orrin Hatch (R-Utah), chairman of the Judiciary Committee, changed the rule so that a nominee would be removed from consideration if only one of the home-state senators objected. The wording on the blue slips was also revised to say, “o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.” This allowed senators to delay nominations by not returning blue slips. Some of President Clinton's nominees were delayed years waiting for blue slips to be returned from Republican senators.
After President George W. Bush took office in 2001, Hatch reversed positions on the "two blue slip" requirement and rewrote the rule to require both home-state senators to object to a nominee in order to block the nomination. The text of the blue slip was also modified to remove the sentence saying no further proceedings would be scheduled until the blue slip was returned to the committee. These changes were overturned when Democrats regained control of the Senate, after Jim Jeffords (I-Vermont) changed his party alignment.
After the 2002 congressional elections, Republicans returned to majority party status. At that time, the blue slip requirements were again changed to require two dissenting blue slips to reject a nominee before the committee. Nevertheless, there have been hearings in which two dissenting blue slips were submitted but the nomination process was not halted. In 2003, the Judiciary Committee heard testimony on the fitness of Henry Saad. This occurred after both home-state senators, Senators Debbie Stabenow and Carl Levin, had objected to Saad's nomination . With no committee options left to derail nominations to which they objected, Democrats began threatening to filibuster nominations once they reached the full floor of the Senate.
Holds
A "hold" is a procedure in which a senator communicates to the Senate leadership that he or she would withhold support for a unanimous consent agreement if a matter were to be brought before the Senate. The reason this has power is that in the absence of a powerful Rules Committee like the United States House of Representatives has, the Senate's ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments (if any) may be offered, and when votes will take place. The quiet threat of a hold ordinarily is enough to take an issue -- including a judicial nomination -- off of the agenda, at least temporarily.
Republican Senators used this method to postpone votes on nominees in the Judiciary Committee under the Clinton Administration. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination.
Anonymous floor holds were abolished in 2003 .
50 Percent Majority
The main argument by Republicans supporting the nuclear option is that because the U.S. Constitution does not explicitly require a three-fifths majority vote for confirmation of judicial nominees, it implies that a simple majority is sufficient. Therefore, supporters argue that the nuclear option would bring current rules in line with the original framers' intent. Because of this, many supporters prefer to call it the "constitutional option". Supporters argue that the filibuster of Bush's nominees effectively establishes a 60 vote threshold for approval of judicial nominees instead of the 50 vote standard required by an up-or-down vote . A fair number of existing justices were confirmed with less than 60 votes, including existing Supreme Court Justice Clarence Thomas (confirmed in a 52-48 vote in 1991).
However, opponents counter that the Constitution does specify a two-thirds majority for other Senate tasks, and the Constitution gives the Senate the power to make its own rules. The history of Senate rules shows that filibusters were unlimited in 1806 (requiring 100% support in the Senate), and that cloture could be achieved with a two-thirds majority in 1917 and a three-fifths majority in 1975. So opponents argue that the Senate has a long tradition of requiring broad support to do business.
60 Percent Majority
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Rather than require the President to nominate Judges who get broad support from both parties in the Senate (60 out of 100 Senators), opponents claim the nuclear option would allow the President to nominate partisan Judges supported only by 50 Republican Senators plus the Vice President. Currently, Republicans hold 55 of 100 seats in the Senate, and Democrats claim the nuclear option is an attempt by Senate Republicans to hand confirmation power to themselves.
Of the 9 U.S. Supreme Court Justices seated as of May 2005, 8 Justices were confirmed by more than 60 percent of the Senate. Most were confirmed unanimously or nearly unanimously. In contrast to these confirmations, Priscilla Owen was confirmed 55-43.
Advice and Consent
Supporters of the nuclear option claim that Democrats are obstructing the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush has nominated forty-six candidates to federal appeals courts. Thirty-six had been confirmed. 10 were blocked and 7 were renominated in Spring 2005. Democrats point out that 63 of President Clinton's 248 nominees (40 of which were federal appeals court nominees) were blocked via procedural means at the committee level, denying them a confirmation vote and leaving the positions available for Bush to fill.
Opponents contend that Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, ... shall appoint Judges..." and that the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations.
Polling indicates public support for an active Senate role in this "advice and consent" capacity. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt. Democratic pollster Westhill Partners found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster — thereby eliminating the current system of checks and balances on the majority party."
The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of Advice and Consent from the Constitution. (pdf):
- We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Political Motivations
Many Democrats view Bill Frist's threats to push the nuclear option to be more about his plan to run for president in 2008 than about the qualifications of the few nominees currently blocked in the Senate. Conversely many Democrats and Republicans believe John McCain was motivated by his desire to block Frist from garnering support from conservatives anticipating a McCain riun in the GOP primaries in 2008. Quoting from Slate.com:
- Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base. By pouncing on Arlen Specter after the November election to demand that the Pennsylvania senator pledge his support for the president's judicial nominees as prospective head of the Senate judiciary committee, Frist made an obvious overture to Christian conservatives.
Pat Robertson, founder of Christian Coalition of America and several other prominent Conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist - a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option. In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. On May 24, 2005, after the compromise negotiated between 14 Senators was announced, Dobson, said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats."
Blocking "Extremist" Judges
In April 2005, Democrats were blocking the confirmation of 7 nominees, all of whom Democrats claim are too extreme for a lifetime appointment despite their support of he once ACLU General Counsel Ruth Bader Ginsberg judged as too extreme by many. President Bush's most controversial nominees are Janice Rogers Brown and Priscilla Owen. Citing descriptions like "dogmatic" (American Bar Association), "extreme" (New York Times), and "activist judge" (CivilRights.org), Senate Democrats, in April 2005, had vowed to fight Brown and Owen's confirmations to the courts.
- Opposition: The Los Angeles Times calls Brown "A bad fit for a key court". Brown's alleged dogmatism and a style bordering on vituperation earned her only a qualified rather than well qualified rating from the American Bar Association. Some committee members found her unfit for the appeals court. The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." People for the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge." . Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of over 100 organizations that oppose Brown's confirmation is given here.
- Another view: Supporters counter that Brown has opposed racial profiling () and won election and then re-election (with 75% of the vote) to the Supreme Court of California. Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," and that her record evinces a sensitivity to civil rights. In 2000, she followed the Supreme Court's lead in Adarand Constructors, Inc. v. Mineta, striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to affirmative action.
- Justice Priscilla Owen.
- Opposition: The Houston Chronicle characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before it—while its justices do not recuse themselves from those cases.(PDF file) The New York Times said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts." The Leadership Conference on Civil Rights (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law." A list of of 60 organizations that oppose Owen's confirmation is given here
- Another view: Greg Abbott, attorney general of Texas and a former justice on the Texas supreme court, disputes the above charge from the Leadership Conference on Civil Rights. Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. In 2000, she was re-elected to the Texas Supreme Court with 84% of the vote.
Barring the American Bar Association
In March 2001, President Bush announced that the administration will no longer seek the American Bar Association’s evaluations of federal judicial candidates, ending a history started by Eisenhower in 1953. Despite this, the ABA’s committee continues to provide the public service. Democratic senators all favor the ABA input. The ABA committee rates each nominee "Well Qualified," "Qualified" or "Not Qualified." While some nominees receive majority/minority ratings, the majority rating is the official rating of the Committee.
The ABA ratings of Article III Judicial nominees for the 109th Congress, updated April 2005, are listed here. Three nominees on that list are rated "Not Qualified" by a minority of the ABA committee: Janice Brown, William Pryor and Thomas Griffith. However, the majority of the ABA committee found three of those four - Brown, Pryor and Griffith - "Qualified". Priscilla Owen was unanimously found "well qualified" by the ABA committee.
While Republican pollster Ayres, McHenry and Associates found that 82 percent of registered voters believe that "well-qualified" nominees should receive a Senate vote.(both PDF files), the ABA gave only 7 out of the 21 judicial nominees a unanimous rating of "well qualified".
Obstructing a Power Grab
In response to claims of "Senate obstructionism," Senate Minority Leader Harry Reid, D-Nev, pointed out that only 10 of 214 nominations by President Bush have been turned down. Former President Bill Clinton called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." George W. Bush has a better record of having his judicial nominees approved than any President in the past 25 years. One of Democrats' biggest complaints has been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1994-2000.) On April 27, 2005, Former Vice President Al Gore said, "Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. ... What is involved here is a power grab."
Offers of Cooperation Rejected
As a goodwill gesture to show that they are willing cooperate with Republicans, on May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's less controversial judicial nominees, former Senate lawyer Thomas Griffith. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation." Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republican intent to use the nuclear option as an "all or nothing" weapon.
Nuclear Option Legality
As for the legality of the nuclear option, in a Christian Broadcasting Network interview, Senator Reid claimed that "the parliamentarian of the United States Senate has said it (the nuclear option) is illegal." Washington D.C. newspaper The Hill reports that a Congressional Research Service report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.
Democratic and Public Opposition
Some also believe that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. As of April, 2005, Republican presidents have appointed a majority of the judges in 10 of the 13 federal appeals courts, 7 of the 9 justices on the Supreme Court and every chief justice since the Truman administration.
It is expected that the entire Democratic caucus will oppose the nuclear option. Many prominent Democrats have come out against the nuclear option, and none have come out in support of it.
Compromise
Democratic Proposal
On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas Griffith; Democrats cited this offer as a goodwill gesture to show that they are willing cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation."
Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republicans' intent to use the nuclear option as an "all or nothing" weapon. Republicans also contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they unilaterally deemed "extremist," even when those nominees enjoyed the support of all 55 Republican Senators. Thus, Republicans asserted that Reid's offer did not solve, going forward, the problems that led to consideration of the nuclear option in the first place. Republicans also contend that the Democrats' judicial filibusters have already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster. Thus, Republicans argue that any talk of compromise should take into account that Democrats have already kept those three judges off the bench.
Republican Counter-Proposal
Senate Majority leader Bill Frist floated a Republican counter-offer, in which, in exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (the main reason that Democrats complain many of President Clinton's nominees were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer, calling it "a big wet kiss to the far right."
The "Gang of 14"
On Friday, May 20th, a cloture vote for the nomination of Janice Rogers Brown was scheduled for Tuesday, May 24th. The failure of this cloture vote would be the beginning of the nuclear option, immediately followed by the asking for the ruling of the Chair on the Constitutionality of the Filibuster.
Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees while preserving the judicial filibuster. Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote.
The moderate block of Senators that agreed to the compromise included, on the Republican side, John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee, and on the Democratic side, Joe Lieberman, Robert Byrd, Ben Nelson, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar. This group was quickly dubbed "the Gang of 14" in various blogs and news outlets.
Legitimacy of Filibustering Judicial Nominees
In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that the Constitution requires two-thirds majorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, Article I, Section V of the Constitution permits and mandates that each house of Congress set up its own rules. Republicans counter that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement. Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided."
Republicans point out that several Democrats once opposed the filibuster on judicial nominees, and have only recently changed their views as they have no other means of stopping Bush's judicial appointees.
Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continue to support the filibuster for general legislation--the current Republican leadership insists the proposed rule change only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans state that there is a difference between the filibustering of legislation -- which affects only the Senate's own constitutional prerogative to consider new laws -- and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.
Republican Senators, including Bill Frist himself, have filibustered in the past to block judicial nominees:
- In 1996, Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an filibuster on March 8, 2000, which failed when only 14 Republicans approved it. Bill Frist was among those who voted to filibuster Paez . Paez was ultimately confirmed with a simple majority.
- In 1968, Republican Senators led a four-day filibuster and successfully blocked Lyndon Johnson's nomination of Abe Fortas to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States. Some Republicans now claim this nomination would have likely failed on a simple up or down vote, but there is no way to know since such a vote was prevented by the filibuster. The Democrats controlled the Senate and Johnson was known for his legislative skills. A cloture motion to move the nomination to a floor vote did get a simple majority, but nowhere near the 66 votes then needed to end debate. Voting against cloture were 24 Republicans and 19 Democrats. Republicans cite the 19 Democratic votes as evidence of bipartisan support for the filibuster, unlike the current filibusters of President Bush's nominees. Democrats point out that all 19 of the Democrats who voted against cloture were from the bloc of southern Democrats (the so called Dixiecrats) that had teamed with Republicans to filibuster civil rights legislation in the 1960s. Republicans also point out that the filibuster of Justice Fortas was justified by the filibusterers as based on his alleged ethics violations, and that the allegations of ethical improprieties actually led to his resignation from the Supreme Court. Democrats note that Justice Fortas was never charged with violating any laws and that similar ethical issues, accepting gifts, have been raised against Judge Owen (and dismissed by Republicans who claim that she did nothing improper).
The Fortas filibuster marked the first use of this tactic against a judicial nominee in U.S. history. It was the only successful judicial filibuster until the Democrats use of the tactic against Bush nominees. Before the Fortas filibuster the Senate would defer to a president's wishes on court appointments, even when it was controlled by the other party. Since the Fortas precedent, both parties have fought appointments in the Senate, but none had actually been filibustered again until the Republicans revived the tactic in 1996.
There are three nominees whom some Republicans discussed filibustering, but Republicans argue that this was merely a threatened filibuster, as these nominees did eventually get a vote.(PDF file). Democrats counter that Republicans are attempting to redefine "filibuster" to mean "successful filibuster" and point out that Republicans did filibuster but that Democrats secured enough votes to end it. While Democrats often cite as an exception Lyndon B. Johnson's 1968 nomination of Abe Fortas to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States, Justice Fortas was the subject of a breaking ethics scandal and Republicans insist that he did not have the support of a majority of Senators -- and in fact, the ethics charges swirling about him led him to resign from the Supreme Court after his nomination to be Chief Justice died. Moreover, Despite these possible exceptions, the systematic filibuster of nominees with confirmed support from a majority of Senators sets a new standard. Democrats did not even filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991, even though Republicans almost certainly would not have been able to muster the votes to overcome such a filibuster.
In 1995, when Democrats held the White House and a majority of the Senate, the New York Times editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." (Democrats note that even with Republicans blocking confirmations in 1995, Senate Democrats never attempted to rewrite Senate rules for confirmation.)
When President George W. Bush took office there were dozens of federal court vacancies, which Democrats contend President Clinton had been unable to fill due to Republican blocking of his nominees. Democrats assert that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations. Republicans held a majority in the Senate during the last 6 years of the Clinton administration, and Democrats claim that the Republicans' record in the confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate.
One of the arguments made by Republicans opposed to the nuclear option was that sooner or later, history dictates that Democrats will return to the majority, and thus the GOP might need tools to block the appointment of an extremist judge for the Democratic party. Following the Gang of 14 compromise, at least one Democrat partisan took up the corollary to this point, and suggested that the Democrats' should have taken the opportunity to rid the Senate of the filibuster, a tool he characterized as a "guarantee that the United States won't pass legislation extending health insurance to all its citizens" and "an inherently reactionary tool that, over the long term, has impeded and will continue to impede activist liberal government".
Protests
On the Princeton University campus, outside the Frist Campus Center (named for Senator Bill Frist's family) students staged a protest against the nuclear option by "filibustering" for two weeks non-stop, beginning on April 26, 2005. Other protests took place at Carleton College, Yale University, Harvard University, Stanford University and Iowa State University. Students at the University of South Carolina organized a counterprotest "point of order" in support of ending judicial filibusters on May 20, 2005.
Alternate Vocabulary
Senator Ted Stevens first suggested using a ruling of the chair to defeat a filibuster in February 2003, the code word for the plan was "Hulk." Weeks later Senator Trent Lott coined the term nuclear option. (Washington Times, May 10, 2003, "Judicial filibuster rule change faces high hurdle in Senate," Charles Hurt). Subsequently, Senator Trent Lott again used the term "nuclear option" in an interview with the Clarion Ledger. The maneuver was called the "nuclear option" because it was seen as a last resort with possibly catastrophic consequences for both sides. The term's association to nuclear war is intended to suggest the maneuver being a 'last resort', as well as the extreme consequences some people think the rules change would produce. The term was partially abandoned by some of its supporters, who preferred to call it "the Constitutional option" or "the Byrd option" To make matters more confusing, in April 2005 Republicans began to attempt to redefine the 'nuclear option' as a description of the Democratic filibuster, rather than the rule change that would end it. Important Republicans in the controversy included Majority Leader Bill Frist, who was one of the strongest opponents of the filibuster (and whose support from the religious right for his 2008 election bid may have depended on ending it), and the those like John McCain that would have broken with their party in opposition to the nuclear option, possibly denying Frist the necessary majority.
See Also
External Links
Opposed to the Nuclear Option
- Center for American Progress: Nuclear Option Resource Guide
- CivilRights.org: a coalition representing 180 national organizations
- Filibusterfrist.com: Coverage of college students' protests against the nuclear option
- Former Vice President Al Gore Slams GOP's Efforts To End Filibuster
- Home Page for Senate Democratic Leader Harry Reid (D-Nev)
- Independent Judiciary
- Princeton Filibusters in Support of the Filibuster
- Save the Filibuster
- Save Phil (A Buster)
- Senator Reid's Letter to Bill Frist
- Washington Post article on Republican's 1968 Fortas filibuster
- Hatching a New Filibuster Precedent: The Senator from Utah's Revisionist history John Dean writes for FindLaw arguing that Orrin Hatch has attempted to mischaracterise the Abe Fortas nomination filibuster.
- Revenge of the Frist
- MoveOn.org Emergency Petition to Save the Courts
Opposed to the Nuclear Option: Myth & Fact Sheets
- Filibustering the Truth
- People For the American Way - Fact versus Myth: The Truth about the Nuclear Option
Support of the Nuclear Option
- Article in Harvard Journal of Law & Public Policy -- Article on the history of the constitutional option, arguing that it is firmly grounded in Senate history (PDF file)
- Confirm Them
- Home Page for Senate Republican Leader Bill Frist (R-TN)
- National Review's Bench Memos
- Senator George Allen (R-VA) Calls Democrats Bluff
- UpOrDownVote.com
- The Committee for Justice
- The Politburo Diktat
Support of the Nuclear Option: Myth & Fact Sheets
- National Republican Senatorial Committee: Selective memory and selective facts
- UporDownvote.com Myth-Fact: Judicial Nominees
Other
- History of U.S. House Committee on Rules
- History of U.S. Senate Committee on Rules and Administration
- Standing Rules of The Senate
- TIME Magazine: The Filibuster Formula