Gang of 14 Agreement Preserves Senate Filibuster of Judicial Nominations

“The nuclear option is gone for our lifetime,” crowed Senate Democratic leader Harry Reid

On the eve of a dramatic vote in the Senate in May 2005 to abolish the filibuster for judicial nominations, seven Republican senators and seven Democratic senators struck a deal that sidelined that vote. Democratic senators enthusiastically celebrated the “Gang of 14 Agreement,” and many conservatives decried it. But those early assessments, as we shall see in a coming post, would prove to be unsound.

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At my urging, National Review Online inaugurated its Bench Memos blog in May 2005, barely a week before the Senate floor vote was expected to take place. In the first of the thousands of blog posts that I have written in the ensuing two decades, I maintained (contra Ken Starr) that it was proper for senators to look to a judicial nominee’s judicial philosophy in deciding whether to vote for that nominee. The problem wasn’t that Senate Democrats were looking at a nominee’s judicial philosophy. The problem was that they held a deeply unsound view of what a proper judicial philosophy is.

That same day, I defended (contra my old boss Orrin Hatch) the constitutionality of the Democrats’ filibuster of judicial nominees, even as I explained that the Senate’s plenary power to determine its own rules also meant that it could abolish the filibuster by simple majority vote.

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On Monday, May 23, senators prepared for “a potentially explosive parliamentary showdown over eliminating Senate filibusters against judicial nominees”:

The import of the moment permeated the Senate atmosphere throughout the day. Democrats and Republicans rolled in cots for what was looming as an all-night session…. And both Democrats and Republicans planned showings of “Mr. Smith Goes to Washington,” the Jimmy Stewart movie that represents filibusters in the minds of many Americans. [New York Times, May 24, 2005.]

Senate majority leader Bill Frist would file a cloture motion on Priscilla Richman Owen’s nomination to the Fifth Circuit. George W. Bush had nominated the Texas supreme court justice in his first slate of appellate picks a full four years earlier, and the American Bar Association judicial-evaluations committee had unanimously given Owen its highest rating of “well qualified.” But Democrats refused to afford Owen a hearing when they controlled the Senate in 2001 and 2002, and they defeated four cloture votes on her nomination in 2003.

As Frist planned it, the fifth cloture vote on Owen’s nomination would take place on Tuesday, May 24. That vote, Frist knew, would fail to obtain the 60 votes needed under Rule XXII.2 of the Standing Rules of the Senate. Frist would then raise as a point of order with the Senate parliamentarian that only a simple majority of votes was needed for cloture on Supreme Court and appellate nominees. The parliamentarian would rule against Frist on his point of order, and Frist would appeal the ruling to the full Senate. If a majority of the Senate sustained Frist’s appeal, a precedent would be set that the cloture threshold on Supreme Court and appellate nominees is a simple majority. In other words, the Senate would have used its majority power to override and supersede (rather than to formally alter) Rule XXII.2.

The one huge question was whether Frist had the votes he needed.

The stakes were high. If Frist succeeded, the Senate, with its 55 Republicans, could promptly confirm the dozen or so appellate nominees who had been held in limbo. At least as importantly, Bush would have an easy path to getting any Supreme Court nominees confirmed in the 109th Congress (2005-2006). And any justices or appellate judges who had been hesitating to step down out of fear that their seats would remain vacant would no longer have that concern.

Conversely, the consequences for Bush and Senate Republicans would be severe if Frist lost the vote on filibuster abolition. Democrats would be emboldened to expand their filibuster campaign more broadly, and the filibuster threat would weigh heavily over a Supreme Court vacancy. Conservative activists would react with rage against Republican senators who sank the cause.

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On the evening of March 23, the members of the Gang of 14—described by the New York Times as “an assortment of moderates, mavericks, and senior statesmen” and led by Republican senators John Warner and John McCain—announced their agreement. The seven Republican signatories agreed to oppose Frist’s effort to abolish the filibuster for judicial nominees. That meant that Frist would have a maximum of 48 votes for his measure, so it was doomed.

Gang of 14 architect John McCain

In turn, the seven Democratic signatories agreed to support cloture on the nominations of Priscilla Owen, Janice Rogers Brown (D.C. Circuit), and William Pryor (Eleventh Circuit). That meant that Frist would have the 60 votes he needed for cloture (with a couple to spare).

The signatories also stated that they were making no commitment to vote for or against cloture on two other nominees: Henry Saad (Sixth Circuit) and William Myers (Ninth Circuit). The agreement thus left Saad and Myers in limbo.

The signatories also agreed with respect to other nominations in the 109th Congress that nominees “should be filibustered only under extraordinary circumstances, and [that] each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”

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Democrats hailed the Gang of 14 Agreement.

“The nuclear option is gone for our lifetime,” crowed a “clearly euphoric” Democratic leader Harry Reid. (Eight years later, Reid himself would deploy the nuclear option, abolishing the filibuster of lower-court nominees and executive-branch nominees.)

“We have kept the Republic,” proclaimed former Democratic leader Robert C. Byrd. (On four occasions in recent years, Byrd had changed the Senate rules by the same simple-majority mechanism that Frist was undertaking.)

Liberal Democrat Barbara Boxer praised the “wonderful” deal as a “big victory” for Democrats.

Democrats also celebrated what they claimed was “an unwritten part of the pact”: that “two nominees not named in the deal—Brett Kavanaugh and William J. Haynes—would not be confirmed” (to the D.C. Circuit and Fourth Circuit, respectively).

Senate Republicans were much more cautious in their assessments. Bill Frist declared that the agreement “has some good news [and] some disappointing news” and that “bad faith and bad behavior” on the part of the Democratic signatories would require him to revisit abolishing the so-called nuclear option.

Many conservative activists were livid:

“Once again, moderate Republicans have taken the victory and thrown it overboard,” said Paul Weyrich, a veteran conservative organizer, who predicted that conservative voters would punish the party.

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I’m pleased to discover that my own immediate assessments were more nuanced.

Building on remarks by Frist and by Republican signatory Mike DeWine, I observed:

The Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain. The fact that the [agreement] contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory’s determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory’s determination of extraordinary circumstances amounts to a violation of the [agreement]. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute “extraordinary circumstances.”

An important but largely neglected question, I pointed out, was “whether Senator Frist would have had the 50 votes he needed (together with the VP’s tie-breaking vote) for changing the filibuster rule if the agreement among the 14 senators hadn’t been reached”:

Those of us who oppose the agreement would have far more reason to be infuriated with the Republican signatories if the agreement actually prevented 50 senators from approving the Frist proposal. Conversely, if the Frist proposal would not have passed, those who defend the agreement could argue that the agreement has produced benefits (the confirmation of Owen and, presumably, the imminent confirmations of Brown and Pryor) that would not otherwise have occurred.

Would Frist have had the votes? The short answer is probably, but no one will ever really know for sure. I reported at the time that “a very knowledgeable source assure[d] me” that Mike DeWine and Lindsey Graham would have supported Frist. If one of them didn’t, the deciding vote would probably have belonged to Senate Judiciary Committee chairman Arlen Specter. Specter recounts in his memoir (Never Give In) that he “had carefully prepared a floor statement on my position on the anticipated vote” but that he “was enormously relieved to have personally dodged a bullet without announcing my judgment.” He declined to disclose his position even in his memoir. One of his Judiciary Committee lawyers tells me:

None of us knew for sure what he was going to do, he kept his counsel on this one, and as he often did on important matters, he worked on the speech by himself. He certainly asked me and others a bunch of questions about the arguments and facts running up to the anticipated votes, but never tipped his hand on what he intended to do.

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Democrats would soon develop a much more negative view of the Gang of 14 Agreement. And their confidence that the agreement would doom the Kavanaugh nomination would prove misplaced.