The Misrepresentations of Boyden Gray and the Radical Right Regarding the “Nuclear Option” and Judicial Filibusters

Confronted by overt GOP ambivalence and anxiety over Senator Frist’s proposed “nuclear option” to destroy the 200 year old Senate tradition of the filibuster, proponents have resorted to greater contortions of logic, the Constitution, and history to make their case. As a result, statements in support of the nuclear option have become linguistic gerrymanders – sentences with so many twists, omissions, and hidden caveats that they mislead without being technically false. This includes, for example, attempts to explain away the successful filibuster of Abe Fortas’ nomination in 1968 to be Chief Justice of the Supreme Court so that more recent filibusters can be portrayed as “unprecedented.”

In this regard, the memorandum on judicial filibusters released on February 28 by Administration apologist C. Boyden Gray is a new low, and in some instances crosses the line from aggressive spin to outright misrepresentation. Just as no tactic is beyond the pale when it comes to the right-wing court-packing agenda, it appears no distortion or perversion of the record is beyond the pale when it comes to justifying their tactics.

While the body of this memo rebuts in detail the points made by Gray in his February 28 memo, below are two specific examples of blatant misstatements:

“Until 1949 is was not even theoretically possible to filibuster a nomination.” (p. 2)
Gray’s statement of Senate history is exactly backward: until 1949 the Senate had no mechanism to end a filibuster of a nomination without unanimous consent. In 1949, as other proponents of the nuclear option agree, the Senate broadened its rule XXII (the cloture rule) to allow a supermajority of the Senate to vote to end a filibuster on any matter before the Senate, including nominations. Gray should know better. After all this history is discussed at length (accurately) in the Gold-Gupta article that is reportedly part of the proponents’ own briefing book for GOP Senators.

“Senate Democrats have an unsurpassed record of obstruction.” (p. 4)
In purporting to compare the Republicans’ treatment of President Clinton’s judicial nominees with the Democrat’s treatment of President Bush’s nominees, Gray gives new meaning to the phrase “lying with statistics.” Some examples (Gray’s assertions are in italics):

  • “Senate Democrats have filibustered 10 of 34 appellate nominees, almost 1/3.” (p. 4) The President has actually sent 52 appellate nominees to the Senate of which 10 were filibustered – thus only 1/5 of his appellate nominees have been blocked not 1/3. Including all judicial nominations, over 95% of the Bush picks considered on the floor have been confirmed by the Senate.
  • “President Bush 43 has the lowest four year appellate confirmation rate of any modern President, 69%” (p. 4). President Clinton’s 4 year confirmation rate in his second term, all under Republican control of the Senate, was only 60% -- 23 of 58 appellate nominees were not confirmed by the Senate. In total, 60 of President Clinton’s judicial nominees never received an up or down vote.
  • “[T]here were more judicial vacancies at the end of Bush 41’s term than at the end of Clinton’s.” (p. 4) What Gray doesn’t point out is that in the middle of Bush I’s term, at the end of 1990, 85 new judgeships were created. Then-President Bush was slow to send nominees for the new positions to the Senate. As a result of the new positions and slow response, the overall vacancy rate at the end of Bush I’s term was 12% and the vacancy rate at the end of Clinton’s term was 8%. However, there were actually more appellate court vacancies at the end of Clinton’s terms (23 -- for a vacancy rate of nearly 13%) than at the end of Bush I’s term (17 – for a vacancy rate of under 10%).

Misquoting Scholars
As is demonstrated at the end of this document, Gray blatantly misstates the positions of constitutional scholars Mark Tushnet and Susan Low Bloch by quoting statements out of context, ignoring directly contradictory statements adjacent to those Gray selects, and suggesting that discussion of positions equals endorsement.

Point by Point Rebuttal of the Gray Memo

“How can a …recess appointment…be likened to [the filibuster]?” (p.1)
Very troubling to Gray was Senate Judiciary Committee Chairman Arlen Specter’s recent statement that the President’s recess appointments of William Pryor and Charles Pickering, after their rejection by the Senate, were “unheard of” and further poisoned an already noxious well. Gray is certainly correct, however, that the filibuster isn’t “morally equivalent” to these unprecedented recess appointments – though not in the way he meant. While the record is clear that there is a long tradition on both sides of the aisle of blocking judicial nominations (through the filibuster and other means), intrasession recess appointments have historically been very controversial,1 and recess appointments of Article III judges have been extremely rare in modern times – only 2 had been made in the forty years prior to the Bush recess appointments.2 Furthermore, the President deliberately chose two of the most controversial for the appointments. And in the case of Pickering, he did so in a particularly inflammatory way – the President chose Martin Luther King Jr’s birthday to recess appoint a man who as a judge had improperly intervened to lower the sentence of a man accused of cross burning.

“To portray [a filibuster] as tantamount to a vote of rejection…is simply incorrect”(p. 1)
Gray’s assertion that the Senate’s failure to confirm a nomination because of a filibuster isn’t a “rejection” is completely counterintuitive. Not surprisingly, he offers no actual argument in support of this statement. In fact, the Senate has an established process for consideration of judicial nominations – an exercise of its right under Article I of the Constitution to set its own rules. For example, the Senate has a separate executive calendar and nominees are automatically referred to Committee. The filibuster has long been a core element of the Senate’s rules and practices, including in the nominations process. Failure of a nominee to surmount any part of the Senate’s nomination process by the end of a Congress constitutes, and has always constituted, figurative and literal rejection by the Senate. For example, a nomination is considered rejected if it fails to receive committee endorsement or consideration. Likewise, a nomination reported out of committee but not approved by the full Senate is considered rejected. Simply put, if the Senate operating under the regular order and its rules and traditions does not consent to the President’s nomination, it is considered rejected.

“Use of the Senate’s Cloture rule conflicts with the Constitution’s Advice and Consent clause” (p.1)
Gray asserts, without explanation, that the Constitution requires a majority vote for nominations. Yet nowhere in the Constitution is there a requirement for a simple majority for vote on nominations – or for a vote at all. What the Constitution does say expressly in Article I Section 5 is that the Senate has the power to make its own rules, which clearly includes the rules governing debate on the Senate floor. In some areas, the framers of the Constitution did take some matters out of the hands of Congress by requiring, for example, two-thirds of the Senate to approve international treaties. But in the area of nominations the Constitution is silent and defers to the Senate. It defies logic to argue that it can be constitutional for a committee chair to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senator to prevent a nominee from moving forward, but unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority. As George Will wrote in his March 20 column in the Washington Post, “conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.”3

“The Judicial filibuster violates the…Separation of Powers.” (p. 1)
Again, Gray’s argument depends on the filibuster being unconstitutional: if the filibuster is illegitimate then it can’t be a valid exercise of the separation of powers. But his argument ignores the fact that, as discussed above, article I section 5 gives the Senate the power to set its own rules and the filibuster is an appropriate exercise of that power. This is in addition to the Senate’s clear authority of Advice and Consent in Art II, which is a direct sharing of the appointment power between the Senate and the President. Gray argues that the President’s appointment power is “primary.” Even if that were true it does not follow that the Senate cannot exercise its rulemaking powers to decide how to use its appointment power (Advice and Consent) in the manner it chooses.

“Any judicial filibuster reform would not apply to the legislative filibuster.” (p. 2)
Gray repeats the claim of proponents that the nuclear option can be used to make a surgical strike against the judicial filibuster without undermining the legislative filibuster. The fact is that past efforts against the filibuster and other protections for the minority in the Senate have always been about legislation, as the so-called “precedents” cited by proponents amply demonstrate. All but one deal with legislation. Thus the slippery slope to turning the Senate into a mirror image of the House of Representatives is a very short one. Furthermore, as a number of newspapers have editorialized[4] it is even more legitimate and important to preserve the filibuster for lifetime judicial appointment as it is for legislation. Proposed legislation can generally be amended and can always be repealed after enactment but a lifetime federal judge cannot be removed absent formal impeachment and trial by the Senate, a rarely invoked process. And the Senate must simply “take or leave” a nomination and cannot amend or repeal it as it can with ordinary legislation. The harder it is to undo a decision of the Senate, the greater should be the deliberation and debate that goes into the decision – not the other way around.

“Democrats used to believe that judicial filibusters were wrong too.” (p. 2)
Gray references the statements of several Democratic Senators in the late nineties opposing the use of the filibuster against judicial nominees. But Gray takes their statements badly out of context – these statements were made in the face of an unprecedented, successful effort by then Senate Judiciary Chairman Orin Hatch to block 60 of President Clinton’s nominations. Yet even as Democrats protested, not once did they suggest or attempt the use of an illegitimate procedure like the nuclear option even in the face of massive obstruction by Republicans. Furthermore, staunch nuclear option proponents like Senators Hatch and Frist have their own histories to explain. In 1994, Hatch defended a Republican-led filibuster on a judicial nomination by declaring that the filibuster is “one of the few tools the minority has to protect itself and those the minority represents.” And more recently Frist voted to support a Republican filibuster of Clinton appellate nominee Richard Paez, and even voted for a motion to postpone consideration of the nomination after cloture had been invoked – an exceedingly rare tactic used to avoid a final vote. And Republicans killed the nomination of Henry Foster to be Surgeon General under President Clinton, made under the same paragraph of the Constitution as a judicial nomination, with a 1995 filibuster. Ardent nuclear option supporters Senators Hatch and Trent Lott voted against ending the successful Foster filibuster.

“Supermajority confirmation requirements do not have a pedigree.” (p. 2)
In fact, use of the filibuster against judicial nominations has a long history.
According to the Congressional Research Service, prior to the 108th Congress cloture motions had been filed and cloture votes held on 14 Court of Appeals nominations since 1980; as recently as 2000, cloture votes were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit. Senator Frist was among those voting against cloture on the Paez nomination. And, of course, Republicans successfully filibustered the nomination of Abe Fortas to be Chief Justice in 1968. Both of William Renquist’s nominations – to the positions of Associate Justice and Chief Justice – were unsuccessfully filibustered.

Confronted with these facts, Gray tries to rewrite history by claiming that even though the Fortas nomination was defeated by a cloture vote in which he received more yeas than neas (45-43), he might have been defeated on a straight up or down vote.

The historical record contains ample evidence rebutting Gray’s theory. In particular, we know that two of the senators who did not vote on cloture, Edward V. Long (D. Mo.) and George Smathers (D. FL), had in fact supported the Fortas nomination in the Judiciary Committee. Another senator, Thomas Dodd (D. CT), voted in favor of the nomination in the Judiciary Committee; the fact that he voted against cloture and in favor of continuing debate is no indication that he had changed his mind on the nomination itself (See 1968 CQ Almanac, page 536.). It was Senator Dodd’s practice to vote no on all cloture votes. The Dodd example alone raises questions about Gray’s apparent assumption that all senators voting against cloture would have voted against Fortas.

These three votes bring the total in support of the Fortas nomination to 49 (3 plus the 47 who either voted for or announced in support of cloture, less the vote of Senator Sherman Cooper (R-KY) who stated his opposition to the nomination but voted for cloture). Add to that Senator George McGovern (D. SD) who was absent for the October 1st cloture vote, but who most certainly supported the Fortas nomination, and the tally becomes 50 votes in favor of the nomination. Even with no other votes in favor of Fortas, Vice President Hubert Humphrey would have cast the tie-breaking vote and Fortas would have been confirmed.

Additionally, if one considers Senator Edward Lewis “Bob” Bartlett (D. AK) and Senator Thruston Morton (R. KY), both of whom missed the cloture vote but had earlier supported the nomination of Supreme Court Justice Thurgood Marshall, then it is plausible there were as many as 52 votes in favor of the Fortas nomination

In any event, Gray’s strained conclusion, that 43 votes against cloture somehow translates into more than 50 votes against the nomination, does not hold water. One thing is clear: a final vote on the nomination did not happen. Because of the Republican filibuster, the exact same “up or down vote” that Republicans have accused Democrats of blocking was denied Fortas.

“[Unlike the filibuster] There are no constitutional implications for Committee procedures.” (p. 3)
The strangest part of Gray’s memo is his struggle over several paragraphs to explain how one Senator blocking a judicial nominee in Committee is constitutional and appropriate while 41 Senators filibustering a nominee on the Senate floor is not. This is logic at its most malleable and implausible.

First, Gray would have us believe that an obscure death in Committee is a more legitimate end to a nominee than a successful filibuster on the Senate floor. But notions of political transparency and accountability actually lead to the opposite conclusion: the filibuster is far more consistent with our republican system because it occurs in the open and by a recorded vote.

Second, Gray ascribes to constitutional scholar Mark Tushnet (improperly – see below) the argument that a majority of the Senate can overcome committee obstruction while a majority cannot overcome a filibuster. But this argument fails under the reality of Senate process and history. A motion to discharge a nomination from committee, the mechanism in question, is fully debatable on the Senate floor, meaning that such a motion can be filibustered and a supermajority of the Senate would have to vote to end debate on the motion and discharge the committee.

Third, Gray asserts that running the “gauntlet” of committee consideration “entitle[s]” a nominee to an up or down vote on the Senate floor. The implication of this argument is that the action of the committee binds the Senate! This is simply wrong. While the Senate could under its constitutionally-granted rulemaking power create such a system, it has never done so for nominations and has only done so for legislation in narrow circumstances. There is simply nothing in the rules and precedents of the Senate that supports Gray’s argument. In fact, the opposite is true – the circumstances where committee action triggers automatic consideration in the Senate are express and specific (certain trade legislation, budget legislation, etc.). That is why the only avenues to mandate an up or down vote on a judicial nomination are by unanimous consent or by invoking cloture under rule XXII. Nor can Gray resort to the Constitution (the only thing that can trump the Senate’s rules) to save his novel theory. Nowhere does the Constitution mention the Senate Judiciary Committee or its Chairman, much less grant it any formal, constitutionally-mandated role in advice and consent.

“If you get past the partisan spin only about 20 [of Clinton’s nominees] were left dangling.” (p. 4)
As is addressed above, Mr. Gray tries every technique possible to make 10 a larger number than 60 – in other words to show that Bush II has been treated more harshly than President Clinton. Here Gray simply tries to shrink 60 to 20 by asserting that only 20 were blocked by Republicans without “specific cause.” But his list of causes is so broad and vague they swallow his argument. His list includes: being “late,” “failure to consult,” “incomplete paperwork,” or “impeachable” – he might as well have included “nominated by President Clinton.”

In fact, if you applied the same list of justifications to President Bush’s blocked judges, almost none of the ten are “clean.”

“The current President has not veered dramatically to the right in his nominations.” (p. 4)
Gray cites two studies suggesting that the confirmed Bush judges, including district courts as well as courts of appeals, are no more conservative or ideological than those appointed by past Presidents. While this conclusion is squarely refuted by PFAWF’s reports “Confirmed Judges, Confirmed Fears” which extensively document, with respect to courts of appeals judges, the right-wing activism of too many of the Presidents appointments, the argument is beside the point. The judges covered by the two studies are the 95% of the Bush judges brought to the floor who were confirmed. Even if they were true, the studies would only reinforce Senate Democrats’ practice of using the filibuster only rarely and judiciously to target the most extreme and troubling of the Bush nominations.

New low in Nuclear Option tactics – Misquoting the Professors

Gray cites5 Georgetown University Law Center Professor Susan Low Bloch for the proposition that the supermajority requirement to end a filibuster on a nomination is unconstitutional because it “would allow the Senate to aggrandize its own role” in the appointment process. Unfortunately, Gray and other proponents of the nuclear option resort to taking her words badly out of context and even misstating her position in their efforts to prove their point.

The quote used comes from an article in the Spring 1997 Constitutional Commentary.6 Her article argues that a House rule adopted in 1995 requiring a 3/5 vote to pass an increase of the federal income tax is unconstitutional because it exceeds the House’s rulemaking authority under Article I, Section 5 of the U.S. Constitution because it violates the presentment clause.

However, as the full paragraph that Professor Bloch is selectively quoted from makes clear, she is not talking about the Senate filibuster. Instead, she is discussing a hypothetical Senate rule that would require a supermajority requirement for final passage of a nomination. In fact, in the preceding paragraph, Bloch expressly distinguishes the Senate filibuster as an internal rule of procedure as to which a supermajority requirement is perfectly constitutional:

“[T]he supermajority requirement contained in [the House tax increase rule] is not merely a rule of internal procedure…Unlike the Senate's filibuster rule, which governs when things come to a vote, House Rule XXI(5)(c) determines when things get presented to the other chamber and to the President.” 7

Thus the only fair reading of Bloch’s opinion in the article is that she does not believe the Senate could constitutionally require a 3/5 vote to confirm a nominee, but a 3/5 rule to end debate does not have the same problem because it relates to internal procedure, not to presentment or passage.

Similarly, Georgetown University Law Center’s Mark Tushnet is cited for the proposition that Democratic filibusters are unprecedented. Again, Tushnet’s words, from an article in the winter, 2004 issue of the John Marshall Law Review entitled “Constitutional Hardball,”[8] are taken blatantly out of context. In fact, Tushnet writes that Democratic filibusters are “not unique” and in the preceding paragraph states that “Democrats' actions were clearly within the bounds set by the Senate's rules, and the Constitution expressly authorizes the Senate to adopt rules to govern its operation.” Ironically, in the same paragraph cited by proponents, Tushnet writes of President Bush’s recess appointments of Charles Pickering and William Pryor to federal appellate courts that “nomination filibusters [are comparable] to recess appointments to the federal courts” -- noting that both sides have played “hardball” with judges.

Further distorting Mark Tushnet’s position, Gray also states that “Prof. Tushnet has written ‘There’s a difference between the use of the filibuster to derail a nomination and the use of other Senate rules…,’” citing him for the proposition that Democratic filibusters are improper while Republican obstruction in Committee during the Clinton Administration was perfectly acceptable. However, these comments attributed to Tushnet – posted on a listserv and not formally published – when read in context are clearly just a statement of a possible argument, not one that Tushnet endorses.

Conclusion:
The stakes in the debate over the nuclear option are enormous. Concentrating absolute power in the hands of one party has never been the American way. The proposal that Gray is advocating is an unprecedented attack on over 200 years of practice and tradition. It is also an attack on the system of checks and balances that are at the core of our constitutional system. Given what is at stake, the American people deserve better than misrepresentation, distorted history, and deceptive rhetoric.

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