De-bunking Filibuster Myths about Judicial-Nominee Filibusters
During the filibuster debate, many liberal talking points turned out to be myth, not fact.
In the ongoing public debate over the use of the filibuster against the president's judicial nominees, many pro-filibuster "talking points" are woefully inaccurate. This article provides analysis of some of the better-known allegations quoted as fact by liberal senators and dutifully reported in the media.
Myth: The filibuster is a 216-year Senate tradition.
Truth: The filibuster certainly does NOT date back to the first Senate, nor is it found in the Constitution. It is a Senate procedural rule. Until 1806, Senate rules allowed a simple majority to bring a matter to a vote. Any senator could interrupt debate and "call the previous question." That meant senators voted immediately on whether all debate should cease. Then, upon a majority affirmative vote, the chamber immediately voted on the original question, whether it was a piece of legislation or an executive appointment.
Because the "previous question" motion was used only once in its first 16 years, the Senate inadvertently omitted it from its 1806 rules, creating the possibility of a filibuster by allowing indefinite debate. Legislative filibusters have a long and sometimes checkered history, with the first reported Senate filibusters conducted in the 1840s.1 However, the Senate had never used filibusters to block a majority-supported judicial nominee until 2003, when the Democratic Party minority began the first of 10 filibusters against the president's circuit court nominees.
Myth: Only 10 of the president's 214 judicial nominees were filibustered (a 95-percent confirmation rate).
Truth: The vast majority of those 204 confirmed judges were appointed to lower federal district courts. The real battle is over the more important Circuit Courts of Appeal nominees. The revealing statistic is that 10 of the president’s 34 Court of Appeals nominees in the 108th Congress (2003-04) were filibustered. After filibusters (actual and threatened) and “blue-slipped”2 nominees, the 108th Congress actually confirmed only 18 of 34 Circuit Court nominees (a 53 percent confirmation rate). President Bush’s overall first-term confirmation rate for Circuit Court nominees was 69 percent.3 And, for the record, the Senate has confirmed 204 out of 229 nominations (89 percent), NOT 204 out of 214.4
Myth: The "constitutional option" is a Republican power grab.
Truth: Fifty-one or more senators would vote today in favor of the nominees Senate Democrats have filibustered. The president won re-election in 2004 in part because of his promise to nominate judges who shared his view that judges should apply law, not make it. In two separate polls, 81 and 82 percent of American voters agreed that all judicial nominees should receive an up-or-down Senate vote (a simple-majority of senators present and voting could confirm or deny an appointment).5 A minority of senators is preventing an up-or-down vote on these judges; that's the real power grab. The "constitutional option," which will restore the Senate tradition of providing judicial nominees with a fair up-or-down vote, is the epitome of the democratic process our Constitution is based on.
Myth: Many of the president's judicial nominees are out of step with the American people.
Truth: The 2004 elections determined convincingly which party has a better handle on “mainstream” values. Partial-birth abortion, same-sex marriage, removing “under God” from the Pledge, and banning the Ten Commandments from the public square, are not now and have never been “mainstream” American values. The conservative, originalist judges6 the president has nominated reflect America’s values. A recent scientific poll confirms that the American people overwhelmingly agree that “President Bush should keep his promise made during the campaign to nominate a U.S. Supreme Court justice who will apply existing law, not make new law.”7
Two of the Left's most frequent targets for the label "out of the mainstream" are Priscilla Owen (5th Circuit nominee) and Janice Rogers Brown (D.C. Circuit nominee). Yet Justice Owen was re-elected with 84 percent of the vote and endorsed by every major Texas newspaper. Likewise, California Supreme Court Justice Janice Rogers Brown won re-election with 76 percent of the vote, and her court voting record reveals she voted with the majority more than any other justice except two, which also puts her squarely within the judicial mainstream.
Myth: The filibuster is necessary to maintain the "checks and balances" of our democratic system.
Truth: "Checks and balances" refer to the separation-of-powers doctrine between government branches (executive, legislative and judicial), not the Senate's balance of power between Democrats and Republicans. In this case, the president nominates judges, and the balance on that prerogative is the Senate's "advice and consent" by an up-or-down, majority vote. The president's ability to appoint new judges (executive branch "check") and impeachment (legislative branch "check") balances the government's judicial branch.
Democrats want to abuse a Senate procedural rule8 to, in effect, rewrite the Constitution's "advice and consent" clause, requiring a supermajority (three-fifths vote) to approve nominees. The Constitution defines where a supermajority vote is required (treaties, veto overrides, etc.). No such requirement is required for "advice and consent." The Senate's authority to write its own procedural rules cannot conflict with the Constitution's substantive requirements.
If the filibuster were vital to the concept of "checks and balances," then the House of Representatives also would have a three-fifths-vote cloture rule, which it does not. A simple majority can end debate and bring a matter to a vote in the House of Representatives.
Myth: Republicans want to stamp out free speech by cutting off debate over judicial nominations.
Truth: Free-speech rights are not the real motivation behind the filibusters. In 2003, Senators Frist and Miller proposed a bi-partisan rules change that would have provided for declining cloture-vote requirements9 over the course of a judicial nomination debate. This rules change would have ensured plenty of debate and an up-or-down vote for nominees. Democrats flatly refused, proving that their goal is to block nominees, not debate them. When Senate Minority Leader Harry Reid was asked how many hours were necessary to debate Priscilla Owen's nomination, he answered, "there is not a number in the universe that would be sufficient."10 Republican Senate majority leader Frist, recently proposed a compromise that would allow up to 100 hours of debate per nominee – a compromise Democrats flatly rejected.
Myth: Without the judicial filibuster, the U.S. Senate becomes a rubber stamp for the president.
Truth: The Senate has already proven it can use up-or-down votes to deal with nominees in a non-partisan manner. In 2004, for example, five Republicans voted against the president's nomination of J. Leon Holmes for a federal district court judgeship. If several Democrats who voted for Holmes had voted against him, he would not have been confirmed.11 More importantly, one of the reasons voters increased the Republican Senate majority was to help the president appoint more traditional judges.
Myth: The Senate is the bastion of minority representation, and the filibuster is the classic minority tool.
Truth: Regardless of population, all states have two senators. That balanced structure was actually a compromise the Founding Fathers struck when they created our bi-cameral (two-house), legislature. The Constitution did not add the filibuster as a tool for the minority. The Senate created filibusters so that a minority could force legislative compromises, a function the Constitution reserves for the legislative branch. But how can the Senate "compromise" on a nominee whose selection is reserved to the executive branch? The Constitution gives the Senate authority only to "advise and consent" on judicial nominees. The filibuster frustrates the Senate's judicial-nomination function; it does not further it.
Myth: The "constitutional option" of restoring a majority up-or-down vote for judges is unconstitutional.
Truth: The Constitution grants the Senate authority to make its own procedural rules.12 In fact, Senator Robert Byrd (D – WV), the Senate parliamentarian, has used a "majority" option four times (1977, 1979, 1980 and 1987) to change Senate precedent,13 which is exactly what the constitutional option would do. Senator Edward Kennedy, another critic of the constitutional option, said this on the Senate floor in 1975:
The filibuster rule is not enshrined in the Constitution. Instead, it is a rule that was made by the Senate, and it is a rule that can be unmade by the Senate. …
Mr. President, the immediate issue is whether a simple majority of the Senate is entitled to change the Senate rules. Although the procedural rules are complex, it is clear that this question should be settled by a majority vote.14
Myth: Republicans filibustered President Clinton's judicial nominees (Paez and Berzon).
Truth: In 2000, when Richard Paez and Marsha Berzon's nominations for 9th Circuit appointments reached the Senate floor, majority leader Trent Lott, working with Democrat leader Tom Daschle, filed cloture before any filibuster could materialize. As a further testament to the bipartisan opposition to judicial-nomination filibusters, more than 20 Republicans who opposed the nominations and who would vote against them nonetheless supported cloture for Mr. Paez and Ms. Berzon, and cloture was easily reached.
In 1999, the Democrats temporarily delayed (by defeating a cloture vote on) Brian Stewart, one of their president's nominees, in order to force Republicans to confirm more of Clinton's nominees.16 Together, the two parties confirmed Stewart by a 93–5 vote. A cloture vote does not automatically mean a filibuster is in progress. A cloture vote plus a confirmation does not equal a filibuster. A cloture vote that prevents a confirmation is a filibuster.
Myth: Abe Fortas was filibustered in 1968.
Truth: No one needed to filibuster Abe Fortas; the majority of the Senate was never willing to confirm him. A cloture motion ended his nomination after four days of debate. A bipartisan 43-45 vote defeated cloture. President Johnson withdrew Fortas' nomination within a few days, before any further debate could proceed.17 Former Senator Robert Griffin, who led the opposition to Fortas' nomination, recently wrote to Senator John Cornyn, explaining that the Republican Party had no formal plan to filibuster the Fortas nomination;18 there was no need, because the votes were there to defeat the nomination outright.
Conclusion
Debates over filibusters can devolve into mere recitations of poorly researched talking points. An informed and rational approach to public debate on such important issues as judicial nominations is not only necessary, but crucial to the Senate's "advice and consent" duties. More importantly, concerned and involved citizens need the whole truth in order to effectively and cogently advise their Senators on these important issues.
1 "Fililbuster and Cloture," U.S. Senate website, <here>, (6 May 2005).
2 A "blue slip" is the document traditionally given to the senator whose home state will be affected by the appointment. If the appointee will be a federal district court judge in North Carolina, for example, then the senators from North Carolina are given the privilege of either returning the "blue slip," meaning that the nomination is approved, or it is withheld, in which case the nomination is effectively put "on hold" and may never receive a committee hearing until the "hold" is removed. In the case of a court of appeals judge, even though the circuits cover several states, the states within a given circuit are usually allocated a pro-rata share of the judges. So the state of Michigan, one of four states making up the Sixth Circuit, is allocated four judges on that circuit court, and hence Michigan's senators control the blue-slips of those four spots.
3 Fifty-one nominations, 35 confirmations. Department of Justice, Office of Legal Policy, <http://www.usdoj.gov/olp/judicialnominations.htm> (3 May 2005).
4 For District Court judgeships, there were 177 nominations and 168 confirmations; for Circuit Court judges, there were 51 nominations and 35 confirmations; and there was one nomination and one confirmation of a judge to the Court of International Trade. See <http://fairjudiciary.com/cfj_contents/nominees/> (6 May 2005).
5 See Ayres McHenry & Associates poll of 15 March 2005 located at <http://judicialnetwork.com/contents/press/031505.shtml> (6 May 2005) and the RNC poll of 26 April 2005 is located at
<http://www.rnc.org/news/read.aspx?id=5399 >(6 May 2005).
6 Judges who follow the original meaning of the Constitutional provision or law being interpreted.
7 (By 75 percent), see Ayres McHenry & Associate poll at <http://judicialnetwork.com/contents/press/031505.shtml> (6 May 2005).
8 "Standing Rules of the Senate," United States Senate website, <here> (16 May 2005).
9 60 votes required in first cloture vote, 57 in the next, then 54, 51 and finally a simple majority of those Senators present.
10 Congressional Record, 8 April 2003, p. S4949.
11 Congressional Record, 6 July 2004, p. S7563.
12 U.S. Constitution, Art. I, Section 5, Clause 2.
13 Senate "precedents" are rulings that affect how Senate rules are interpreted and applied in certain situations.
14 Congressional Record, 20 February 1975, pp. 3847-50.
15 For Berzon, compare Record Vote #36 [cloture invoked, 86-13] with #38 [confirmed, 64-34]; for Paez, compare Record Vote #37 [cloture invoked, 85-14] with #40 [confirmed, 59-39], all votes on Mar. 8-9, 2000. See Republican Policy Committee paper, The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote, 25 April, 2005, p. 10, <http://rpc.senate.gov/_files/Apr2505ConstOptSD.pdf> (5 May 2005).
16 Congressional Record, 21 September, 1999, p. S11096.
17 C. Boyden Gray, "A Filibuster Without Precedent," Opinion Journal," 15 June 2003, <http://www.opinionjournal.com/forms/printThis.html?id=110003629> (6 May 2005).
18 Congressional Record, 12 November 2003, p.S14560.
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