Filibuster Politics Shape Strategies on Alito Nomination

Democrats' excesses put them at severe disadvantage

George W. Bush’s nomination of Samuel Alito to Justice Sandra Day O’Connor’s seat at the end of October 2005 put Senate Democrats in a very difficult position. Republicans had a comfortable 55-seat majority in the Senate. So Democrats, in order to defeat the Alito nomination in an up-or-down vote on the Senate floor, needed at least six Republicans to join them. That was very unlikely to happen.

The one weapon that Democrats could wield on their own to prevent Alito’s confirmation was the filibuster—preventing the 60 votes needed on the threshold motion for cloture on the nomination. (Cloture is the Senate’s procedure for ending debate on a matter.) Under the then-existing cloture rule, if at least 41 of the 45 members of the Democratic caucus voted against cloture (or simply didn’t vote), the Senate would not be able to proceed to a final vote on confirmation. But moderate Democrats in at-risk seats in red or purple states didn’t have the same appetite for the filibuster that their liberal colleagues in safe seats in blue states did.

The political strategy of the White House and Senate Republicans was directed from the outset at deterring or defeating a filibuster effort. Alito’s opponents meanwhile tried to figure out whether and how they could unify Democrats in support of a filibuster. In these competing efforts, the filibuster battles that had been fought since 2003 over Bush’s federal appellate nominees gave Alito’s supporters a huge advantage.

* * *

In my roughly chronological account of judicial confirmations over the past three decades, I jumped from the end of Bill Clinton’s presidency into George W. Bush’s Supreme Court selections and thus passed over the monumental fights over Bush’s lower-court nominees. I will have a lot to say on those fights soon, but for now I will provide a high-level summary of how they bore on the prospect of a filibuster of the Alito nomination.

When Republicans won control of the Senate in the 2002 elections, Democrats lost the power to use their simple majority to deny hearings and floor votes to those Bush judicial nominees they deemed to be objectionable. The filibuster had never before been used as a partisan weapon to defeat a judicial nominee. But in 2003, Democrats launched a sweeping campaign of filibusters, defeating a total of 21 cloture votes on ten federal appellate nominees.

In the 2004 elections, Republicans expanded their majority from a very tight 51-to-49 edge to a very comfortable margin of 55 to 45. What’s more, Senate Democratic leader Tom Daschle lost his bid for re-election in a race in which his obstruction of Bush’s judicial nominees had (in the words of the victorious John Thune) an “amazing” impact.

When Democrats resumed their filibusters in 2005, Republicans undertook to modify the cloture rule to reduce the 60-vote supermajority threshold to a simple majority. But in May 2005, on the verge of a floor vote on the proposed modification—and with the outcome of such a vote too close to call—Republican senator John McCain engineered the “Gang of 14 Agreement.” The Gang of 14—seven Republicans and seven Democrats— defeated the Republican effort to abolish the 60-vote supermajority for cloture on judicial nominees. The Gang members also agreed to support cloture on three specific nominees who had been filibustered.

More importantly for our immediate purposes, the Gang of 14 agreed that “future judicial nominations” in 2005 and 2006—including nominations to the Supreme Court —“should be filibustered only under extraordinary circumstances.”

Gang of 14 signatory Ben Nelson

The Gang of 14 Agreement deftly served the purposes of moderate Democrats who didn’t want to be caught in the political crossfire of filibuster battles. They established that they would apply a presumption against resort to the filibuster, and they took control of the decision when that presumption should be overcome. At the same time, they won credit from their more liberal colleagues for preempting the Republican effort to abolish the filibuster.

* * *

The White House immediately focused its attention on preventing a filibuster of Alito’s nomination. The day after the nomination, in an article subtitled “White House Tries to Forestall Filibuster by Targeting ‘Red State’ Democrats,” the Washington Post reported that, instead of having Alito make the usual visits to members of the Judiciary Committee, the White House arranged for him to meet with three “Democratic senators representing Republican-leaning states.” Two of those three senators—Ben Nelson of Nebraska and Mark Pryor of Arkansas—were part of the Gang of 14. In that same first week, a group “with close ties to the White House” ran television commercials in support of Alito in Nebraska and Arkansas. (New York Times, Nov. 5, 2005.)

Republican senators also warned Democrats that they would abolish the filibuster if Democrats resorted to it:

After meeting Judge Alito on Monday [the day of his nomination], Senator Orrin G. Hatch, Republican of Utah, said he believed that the Republicans had enough votes if necessary to overcome a filibuster by changing the rules. Two Republicans who had withheld their support for the rule change, Senator Lindsey Graham of South Carolina and Senator Mike DeWine of Ohio, have said they would support the move if Democrats mount a filibuster against Judge Alito. [New York Times, Nov. 2, 2005]

Liberal Democrats soundly perceived that Alito would likely be markedly more conservative than O’Connor. But for all their strong rhetoric against him, the division among Senate Democrats that was manifested in the Gang of 14 Agreement meant that they had to take a passive wait-and-see approach. Chuck Schumer, “one of the most outspoken Democrats on the Senate Judiciary Committee,” didn’t dare to threaten a filibuster effort. On the day of Alito’s nomination, he meekly

refused to comment on the possibility that Democrats could try to block Alito through a filibuster. “Nothing is on the table, and nothing is off the table,” he said. [Washington Post, Oct. 31, 2005]

Dianne Feinstein, also on the Judiciary Committee, “said she considered a filibuster unlikely.” (New York Times, Nov. 2, 2005.) Indeed, even as “the possibility of concerted opposition from the Democrats seemed more distinct” than it had on Bush’s earlier nominations of John Roberts and Harriet Miers, “no Democrats were willing to suggest that they would mount a filibuster” against the Alito nomination. (New York Times, Nov. 1, 2005.)

* * *

As we shall see, in three major acts of escalation in the judicial-confirmation wars—filibustering Bush’s appellate nominees in 2003, abolishing the filibuster for lower-court nominees in 2013, and filibustering Neil Gorsuch’s nomination to the Supreme Court in 2017—Senate Democrats demonstrated an inability to see even one step down the road.

When Democrats decided to introduce the filibuster as a weapon against judicial nominees, might it have been more sensible for them to be more selective in wielding it? If they had filibustered, say, two or three federal appellate nominees rather than ten, might Tom Daschle have avoided his narrow loss to John Thune in 2004? Might Senate Republicans have seen no reason to try to abolish the filibuster in the spring of 2005? Might the Gang of 14 Agreement never have happened? And might Democrats therefore have been in a much stronger position to muster a filibuster against the Alito nomination?

Or would there ever even have been an Alito nomination? Here’s one observation in hindsight that Democrats should find agonizing: If, say, Democrats hadn’t obstructed Bush’s May 2001 nomination of Texas supreme court justice Priscilla Richman Owen to the Fifth Circuit for more than four years, it seems very likely that Bush would have nominated her, rather than Harriet Miers, to the Supreme Court in early October 2005. With her decade of experience on the Texas supreme court and the Fifth Circuit, Owen would certainly not have triggered the conservative rebellion that Miers did. So it’s probably thanks to the Democrats’ excesses that we have instead had Alito on the Court.

These matters are of course imponderables, and I won’t claim to be able to address them definitively. But there is little reason to think that Democrats gave careful thought to how their blunderbuss filibusters against Bush’s appellate nominees might damage them on the far weightier matter of his Supreme Court nominees.