Chuck Schumer's Filibuster Flop

What if Senate Democrats had shown some restraint?

The unprecedented campaign of partisan filibusters that Chuck Schumer and his fellow Senate Democrats launched in 2003 against George W. Bush’s appellate nominees ended up being a colossal failure. If Democrats had been more sparing in their use of the filibuster, Republicans would not have been able to muster a credible effort to abolish it. There would never have been a Gang of 14 Agreement. And Democrats would have been in a strong position to filibuster Bush’s nomination of Samuel Alito to the Supreme Court in 2005.

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The ultimate goal of the Democrats’ filibuster campaign was to prevent Bush from appointing conservative Supreme Court justices. One way that the campaign pursued that goal was by preventing potential Supreme Court candidates like Miguel Estrada from becoming federal judges in the first place—and from thereby developing the credentials and experience that would make the leap to the Supreme Court a modest one. A second and more important way was by normalizing and legitimizing the filibuster as a tactic, thus making it a more potent weapon against a Supreme Court nomination.

The filibuster was simple and powerful. The Democratic caucus had 49 senators in the Senate that convened in January 2003. In order to prevent the 60 votes needed for cloture on a judicial nominee, Democrats had to muster only 41 votes against cloture. As the seven successive votes against cloture on Estrada’s nomination demonstrated, Republicans had no effective response.

Democrats who filibustered—most of them, at least—quickly discovered that they weren’t paying a political price for their obstruction, and they were winning acclaim from their liberal supporters. So they rapidly expanded their list of targets. In 2003 and 2004, they deployed the filibuster against ten of Bush’s appellate nominees and defeated a total of twenty cloture votes on those ten nominees.

Senator Chuck Schumer

What Chuck Schumer, Democratic leader Tom Daschle, and other leaders of the filibuster effort never anticipated, or at least never took into account, was the prospect that there might ever be 50 Senate Republicans who were ready to exercise (along with Vice President Dick Cheney’s tie-breaking vote) the plenary power of a Senate majority to abolish the filibuster of judicial nominees. But, as we have seen, that prospect suddenly arose after Republicans won enough seats in the 2004 elections to gain a 55-seat majority in the 109th Congress (2005 to 2006) and, for good measure, saw John Thune defeat Daschle’s bid for re-election by pounding him over the filibusters.

Whether or not the Republican effort in May 2005 to abolish the filibuster would have succeeded, it was a sufficiently plausible threat that it triggered the Gang of 14 Agreement as a countermeasure. And the Gang of 14’s agreement that judicial nominations, including Supreme Court nominations, “should be filibustered only under extraordinary circumstances” paved the way for Samuel Alito’s confirmation to the Supreme Court in January 2006.

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What if Schumer and Senate Democrats had been much more restrained in their use of the filibuster in 2003 and 2004? What if, instead of filibustering ten appellate nominees, they had, say, gone after only Estrada and two or three others?

The controversy over the filibuster would have been much reduced. Perhaps Daschle would have won re-election (he lost by barely a percentage point), and perhaps the Republican majority in 2005 would have been smaller. But even if you assume a 55-seat Republican majority, how likely is it that majority leader Bill Frist would have seen an urgent need to abolish the filibuster, and how likely is it that Republicans would have presented a plausible threat of doing so?

Under these circumstances, I believe that Senate Democrats would have had the filibuster as a powerful tool as they faced George W. Bush’s efforts to fill the two Supreme Court vacancies that arose in 2005. They would have normalized it as a legitimate weapon without having damaged it through overuse. Maybe Bush would have been deterred from nominating Alito. But if he did nominate Alito (or anyone else with a strong conservative profile), Democrats would have been in a strong position to filibuster his confirmation.

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On top of the reasons I’ve already mentioned, another reason that Democrats didn’t exercise restraint in their use of the filibuster is that the liberal interest groups in D.C. would have hammered them for doing so. This was especially true on the abortion issue: any candidate who displayed a hint of opposition to Roe v. Wade had to be filibustered.

The same dominance of the liberal interest groups over sound strategic judgment would play itself out a dozen or so years later, when the Left would drive Chuck Schumer, newly ensconced as Senate Democratic leader, to an even more momentous filibuster blunder: his historically consequential decision to filibuster Donald Trump’s Supreme Court nomination of Neil Gorsuch.