The Importance of Selective Filibusters Against Bush’s Court-Packing Plan


Contact: Nathan Richter or Tracy Duckett at People For the American Way

Email: [email protected]

Phone Number: 202-467-4999

With the recent nomination of William Pryor to the U.S. Court of Appeals for the 11th Circuit, the Bush administration has clearly signaled that it will continue to nominate far-right ideologues for crucial appeals court seats rather than engage in the kind of consultation and compromise that would result in the nomination of more moderate nominees that could win significant bipartisan support.

The administration’s continuing refusal to seek a bipartisan solution, even though the Congress like the nation is closely divided, leaves the modern-day filibuster, the Senate procedure requiring 60 senators to agree to a vote on significant issues, as one of the Democrats’ only tools for resisting the administration’s court-packing plan. Failure to use that tool would mean acquiescence in an ideological takeover of the federal judiciary by judicial activists who are eager to turn back the clock on decades of legal precedent and social justice progress. It is imperative that Senate Democrats make judicious use of the filibuster in order to preserve important legal principles and indeed the very constitutional framework that permits the federal government to defend individual liberties and address national problems.

While Senate Judiciary Committee Chairman Orrin Hatch and some of his colleagues have repeatedly suggested in recent weeks that use of the filibuster is inappropriate and even unconstitutional, the historical record is clear. Both Republicans and Democrats have often demanded 60 votes on what each considered controversial nominations as well as legislation. During the Clinton administration, a number of Republican Senators repeatedly used the filibuster, which has a long and bipartisan pedigree. But they also made extensive use of the much less open and accountable tactic of secret holds by a small number of senators to delay and prevent votes on an unprecedented number of appeals court nominees. Indeed, one third of the Clinton circuit court nominees were blocked between 1995 and 2000. Sen. Leahy has recently described Senate Republicans’ approach during the consideration of Clinton administration nominees, which permitted one or a handful of senators, through secret holds, to prevent a nominee from even getting a hearing. Republican leaders who participated in such a scheme have little credibility suggesting that a filibuster is unconstitutional because it permits 40 senators to prevent a final vote. In fact, in 1994, while some Republican senators were engaged in a filibuster against a Clinton administration nominee, Hatch called a filibuster “one of the few tools that the minority has to protect itself and those the minority represents.”

That tool is especially important given the Bush administration’s actions and Hatch’s growing willingness to unilaterally discard bipartisan agreements and violate longstanding committee rules in order to turn the Judiciary Committee and the Senate into a rubber stamp for Bush’s judicial nominees.

  • When he chaired the committee during the Clinton administration, Hatch permitted a single home state senator to prevent action on a nominee through use of the “blue slip” policy; now that there is a Republican in the White House, Hatch has abandoned that policy.
  • In January, Hatch held a single hearing for three controversial appeals court nominees – Jeffrey Sutton, Deborah Cook, and John Roberts – even though multiple controversial appeals court nominees on a single day violated a longstanding bipartisan agreement. In the mid-1980s, Senators Strom Thurmond, Joseph Biden, Bob Dole, and Robert Byrd agreed in writing that there would be no more than one controversial nominee scheduled at any one time, an agreement that had been followed under both Republican and Democratic control until Hatch’s packed January 29th hearing.
  • More recently, Hatch abused his power as committee chair to concoct a new meaning clearly contradicting the plain language of a longstanding committee rule that was designed precisely to prevent such partisan misdeeds by requiring the support of at least one committee member of the minority party to bring items to a committee vote. Hatch has unilaterally suspended that rule to permit him to force committee votes on judicial nominees at will.
  • The administration has reportedly advised judicial nominees to be reticent in answering senators’ questions, instructing them not to discuss any court decisions that they have not previously addressed in writing. And in an unprecedented move, the administration renominated this year two controversial nominees – Charles Pickering and Priscilla Owen – who were rejected by the Judiciary Committee last year.

    Faced with a White House that refuses to engage in dialogue and compromise, and Republican Senate leaders who refuse to respect their own procedures or professed standards of fairness, Democrats have no alternative but to make selective use of the filibuster to stop some of the worst nominees and to try to give the administration a reason to come to the bargaining table in good faith.