Bill Frist's Huge Task in 2005

How to thwart the filibuster of judicial nominees

As George W. Bush began his second term as president in January 2005, Senate majority leader Bill Frist had one big challenge ahead of him: He had to find a way to defeat Democratic senators’ filibustering of judicial nominees. That challenge was now urgent, as Chief Justice William H. Rehnquist’s dire health signaled that a Supreme Court vacancy could arise very suddenly.

I will address in this post Frist’s effort to abolish the filibuster of judicial nominees via what was called (usually by opponents) the “nuclear option” or (by supporters) the “constitutional option.” In follow-on posts, I will explain the “Gang of 14 Agreement” that preempted a Senate floor vote on Frist’s proposal, and I will assess the broader consequences of that agreement.

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As I have explained in detail, when Senate Democrats decided in March 2003 to prevent the 60 votes needed for cloture on George W. Bush’s nomination of Miguel Estrada to a D.C. Circuit seat, they blew up a longstanding and remarkably robust consensus against partisan filibusters of judicial nominations, and they thus dramatically escalated the confirmation wars. Their ensuing campaign of filibusters against nine other appellate nominees made clear that they were preparing to filibuster any Supreme Court nominee they regarded as too conservative.

Unprecedented as their action was, Democrats were operating in accord with what the existing rules allowed. Even though it was “only by happenstance” that nominations were “swept into” the Senate’s revision of its cloture rule in 1949, Rule XXII.2 of the Standing Rules of the Senate provided then, just as it continues to do now, that a cloture motion on a judicial nomination is approved only if it receives votes “in the affirmative by three-fifths of the Senators duly chosen and sworn.”

Senate majority leader Bill Frist

Frist had two basic options. One option was to continue to try to win the Democratic votes needed to reach the cloture threshold of 60 votes. The Republican majority in the Senate had increased from 51 senators in 2003 and 2004 to 55 senators in 2005, so he now needed only five Democrats to vote for cloture on Bush’s nominees. But he had been able to count on the support of only two Democrats before, and one of them had retired. So how could he imagine reliably getting five Democrats on every nomination, including for the Supreme Court?

Frist’s second option was to override Rule XXII.2 and replace its 60-vote cloture threshold with a simple-majority requirement. On its face, Rule XXII.2 itself might seem to have made this path impossible, as it provides that the necessary affirmative vote on a cloture motion on “a measure or motion to amend the Senate rules” is “two-thirds of the Senators present and voting.” Having consistently failed to attain the 3/5 threshold needed for cloture on judicial nominations, how could Frist hope to get the 2/3 majority needed to change the cloture rule and deprive Democrats of the ability to continue to filibuster judicial nominations?

My short theoretical answer to this question begins with the fact that the Constitution (Article I, section 5, clause 2) confers on each House of Congress the plenary power to “determine the Rules of its Proceedings.” That is a power that rests with a majority of the members of each body (or, more precisely, with a majority of a quorum). Any rule that a majority may adopt, a later majority may revise or repeal. In other words, the Senate lacks the power to entrench a rule by purporting to require some sort of supermajority to revisit it. Any purported entrenchment of a rule intrudes on the plenary rulemaking authority that the Constitution confers.

That doesn’t necessarily mean that the Senate could revise the text of Rule XXII.2 without complying with its 2/3 cloture rule. But it does mean that the Senate could use other available means—e.g., a simple resolution—to supersede Rule XXII.2 and render it inapplicable to judicial nominations.

Consistent with this theory, the Senate, under the direction of Democratic majority leader Robert Byrd, had four times in recent years superseded provisions of the Standing Rules by majority vote. (See this excellent 2005 Republican Policy Committee paper for details.)

I don’t want to get too deep into the legal weeds here. But I will address one common objection. “So you’re saying that when the Senate doesn’t want to abide by its rules, it can simply change them? Doesn’t that make the rules meaningless?” Let’s address each question in the objection.

Yes, I am saying that the Senate has inherent authority to change its rules at any time. On matters not prescribed by the Constitution, how could it be otherwise? What would be the source of any restrictions?

But, no, this doesn’t render the rules meaningless. The rules themselves reflect and reinforce norms of conduct that senators have generally determined to be in the long-term interests of the institution and of the senators themselves. Recognizing those long-term interests has deterred senators from willy-nilly pursuing whatever short-term advantage might be gained by overriding the rules.

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Frist and other supporters of the “constitutional option” argued that it would simply restore the operational status quo with respect to judicial nominations that existed before Democrats launched their filibuster campaign against Estrada and others in 2003.

Opponents condemning the “nuclear option” painted a very different picture. Senator Chuck Schumer, the strategist who pushed the filibuster campaign, warned of a “great constitutional crisis.” Senator Patrick Leahy declared that Frist’s proposal “would violate and destroy the Constitution’s design of the Senate as an effective check on the executive.” Liberal Washington Post columnist E.J. Dionne contended that “what’s really going on here” is “regime change disguised as a narrow rules fight.” (All three would take very different positions eight years later when Senate Democrats nuked the judicial filibuster; the rhetoric of many Republicans would also be different then.)

A small but critical number of Republican senators—John Warner and John McCain prominent among them—were deeply concerned that abolishing the filibuster for judicial nominations would pave the way for abolishing the filibuster for legislation.

Frist worked for months to build support for his proposal. But as he prepared for a floor vote on the constitutional option in late May 2005, no one knew whether he had the 50 votes that he needed—along with Vice President Dick Cheney’s tie-breaking vote—to abolish the filibuster for judicial nominations.