Inside the Fight Against the Estrada Filibuster

A lieutenant's perspective

To complement the bird’s-eye view that I’ve provided of the monumental battle over George W. Bush’s nomination of Miguel Estrada to the D.C. Circuit, I’m happy to provide a combatant’s ground-level perspective.

Few if any Senate staffers worked more intensively on the Estrada battle than Steven Duffield. A recent graduate of the University of Chicago law school, Duffield jumped at the opportunity to work for Republican Policy Committee chairman Jon Kyl at the outset of 2003. Senator Kyl (of Arizona) was also a member of the Judiciary Committee, and judicial nominations were an important part of his portfolio. Republicans had just reclaimed control of the Senate, and Steven was eager to help confirm Bush’s judicial nominees.

I’m grateful to Steven for discussing his experience with me.

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Q. You started working for Senator Kyl in early January 2003, right in the middle of the battle over the Estrada nomination. When did you realize that Democrats were seriously considering resorting to the filibuster to block Estrada? And what did you and Senator Kyl do to prepare Republicans for the fight?

A. It was apparent as soon as the new Congress opened. Democrats had just lost their slim majority, and all signals were that they would not bend on Estrada’s nomination. But Senator Kyl and other Senate Republican leaders were hopeful that Democrats might listen to reason and think of the long-term consequences. He asked me to develop a historical account of cloture votes on judicial nominations for him to review, resulting in this Republican Policy Committee white paper that was shared publicly as well as directly with his colleagues. Its key observation:

[T]he Senate has never blocked by filibuster a nominee to any lower court. Furthermore, the Senate has never blocked—by a partisan filibuster—any judicial nominee. 

Senator Kyl saw the Estrada filibuster as an escalation fraught with downstream consequences. 

I will note that the paper errs in accepting as fact that the Abe Fortas nomination to the Supreme Court had been blocked by filibuster. As later became apparent through more research, including a phone conversation I had with the long-since-retired Senator Robert Griffin (R-MI), who had opposed the Fortas nomination, LBJ pulled the Fortas nomination because the early cloture vote showed it to be highly unlikely he would get a majority on an up-or-down vote. Griffin emphasized that there had been no plan to block Fortas by filibuster.

Senator Jon Kyl

Q. What changed when the Democrats launched their filibuster?

A. Most prominently, judicial nominations became a Senate-wide issue. It’s important to remember that before 2003, the battles over lower-court nominations happened mostly in the Judiciary Committee, with the rest of the Senate continuing about its business. The Estrada filibuster and the other filibusters in 2003 that followed it changed everything. All the Senate Republican leaders—Majority Leader Bill Frist, Whip Mitch McConnell, Conference Committee Chair Rick Santorum, Policy Committee Chair Kyl, and Conference Committee Vice-Chair Kay Bailey Hutchison—were personally engaged and focused on breaking these filibusters. Even George Allen, as National Republican Senatorial Committee chair—not typically a policy-focused role—was very active.

Q. What did this mean in practice?

A. First, all the leaders spoke often of the importance of stopping these filibusters quickly so Senate norms and traditions of comity would not change. The issue was discussed at weekly lunches and on the floor regularly. Second, the leaders put their staff to work. Leadership offices took on a greater role briefing off-committee senators, a role that previously would have been solely a Judiciary Committee duty. Senator Santorum, managing the communications operation, began briefing press staff, and the Policy Committee focused on policy staff. We produced historical analyses and worked with the Judiciary Committee to address bogus attacks on the nominees. We were tracking every op-ed about judicial filibusters throughout the nation, which were overwhelmingly opposed to the Democrats’ move. The Judiciary Committee was doing tremendous work, but they had new, potentially controversial nominees coming down the pike (Bill Pryor, for example), and Leadership staff helped them get the whole Senate party involved.

Q. Can you explain more the “Senate norms and traditions of comity” that were imperiled?

A. The Senate is slow and frustrating, but it can work when there are strong relationships and mutual trust. The six-year terms, the floor “holds” on legislation, and the horse-trading on all sorts of issues traditionally facilitated an often-maddening but still-productive legislative process where senators gauged success in terms that weren’t merely majoritarian. The losers today lived to fight another fight tomorrow. Supermajority-style consensus was the goal. 

The judicial-nomination filibuster undermined all of that. It is why some of the “Old Bull” senators—senior senators with built-up power and credibility—were incensed at these new filibusters. Republican senators like Ted Stevens, Arlen Specter, and Pete Domenici—all more moderate-to-liberal in their politics—saw that this new obstruction technique represented a breakdown in the bipartisan understanding that the filibuster was inappropriate for judicial nominations.

They also complained, rightly, that while a filibuster of a bill lends itself to compromise through rewriting or elimination of contentious provisions, there was no opportunity to do that with a judge. It was an up-or-down vote. You can’t “amend” a judge. So what was the point of the filibuster? It was to create a 60-vote threshold, period.

Q. It soon became clear that Republicans weren’t going to be able to break the filibuster on the Estrada nomination, and there was also no reason to think they’d be able to break the Democratic filibusters of other nominees. So what recourse did you have?

A. During this period, a very small group of senior staff began working on the intellectual and historical foundations for eliminating the judicial filibuster through a vote of the majority of senators. As brief legal background, while Senate Rule XXII explicitly says that the rules can be changed only by the procedures that Rule XXII itself provides—and that proposed rules changes can be filibustered with an even more difficult 67-vote threshold—there is also a small but important body of precedents that affirm the power of the Senate, defined constitutionally as a majority of its quorum, to act via precedent and set new procedures outside the rules.

To show how these precedents worked involved a great deal of research into the previous times that the Senate had changed the rules by a simple majority vote, the arguments made, and the way the Senate had reacted. Interestingly, Robert C. Byrd, the longtime Democratic senator from West Virginia, had been crucial to the more recent precedents when he had been Senate majority leader, and he was still serving in 2003. My understanding from that time was that he was appalled at the judicial filibusters but unwilling to fight his party on them; he was also mortified to find his precedents used against him in argument. On the other hand, those of us staffing the leaders were very focused on ensuring they could go toe to toe with Byrd on the floor if it came time to take this step.

In any case, we spent many months on this work, wrote up the argument, shared it privately with a few key senators, and then more broadly within the Senate. An example of that work is here, from Senator Kyl’s Policy Committee. Marty Gold and Dimple Gupta, two Senate staffers heavily involved in these fights, also wrote a broader article in the Harvard Journal of Law & Public Policy that received a good bit of attention.

Q. Why didn’t Republicans use their majority power to abolish the judicial filibuster in 2003?

A. We didn’t have the votes. In 2003, Republicans had a narrow 51-to-49 majority, and a few senior Republicans, such as the late John Warner, were afraid that this pushback would lead to the end of the legislative filibuster. The Republican leaders strongly disagreed that the legislative filibuster was at risk, but we needed more votes.

Q. In November 2003, Republicans waged an all-night debate to try to put an end to the filibusters. Cots were shipped into the Capitol, and the galleries remained open all night. As I’ve explained before, when a majority doesn’t have the votes needed for cloture, it faces a wildly asymmetrical burden if it tries to force and defeat a talking filibuster. Was this all-night debate just a futile political stunt? Or did it serve some purpose?

A. We needed to prove to the public—especially the conservative base, which was so focused on seeing the filibusters broken—that the Democrats were wholly committed to the filibuster and that even forcing debate in the middle of the night would not stop them. Some in conservative talk radio were claiming that Democrats were exhausted and would break. That was just the triumph of hope over reality. But it was very gratifying to see such broad support among Republican senators. The discussion and debate were excellent—see Senator Kyl’s summary—but they did not change the minds of any Democrats.

Q. Looking back with the benefit of two decades of hindsight, how do you view the significance of the Estrada filibuster?

A. Just as we warned at the time, the Democrats’ decision to filibuster the Estrada nomination was a major inflection point, both in the confirmation wars and in the history of the Senate more broadly.

Let’s start with the confirmation wars. The filibuster fundamentally changed the expectations regarding how senators in the party opposite the president’s party would assess lower-court nominees: the fight over judicial philosophy was now front and center.

The question of “competence” versus “ideology” (or “judicial philosophy”) was still being hotly contested in the early 2000s. Senator Orrin Hatch, who had famously supported Bill Clinton’s nomination of Ruth Bader Ginsburg to the Supreme Court, tried valiantly to convince senators that, except in truly extraordinary circumstances, the core question should be competence. It’s a battle he was already losing when Estrada was nominated, and we saw it die altogether during 2003. It’s now a relic of the past.

The unleashing of the filibuster also showed that Democrats would resort to any tactics to defeat a nomination.

Democrats of course ended up abolishing the filibuster as a weapon against lower-court nominees in 2013, after Republicans deployed it against some of Barack Obama’s picks. But the massive escalation of the confirmation wars that the Estrada nomination triggered has continued and intensified.

Q. How did the Estrada filibuster alter the Senate more broadly?

A. The animosity and the frustration with a party-wide assault on comity and cooperation have certainly migrated into other areas, with a tit-for-tat environment that has made the Senate far weaker as an institution than it was or than it should be. People might hate the “club” culture of the old Senate, but is this better?

It is deeply regrettable that a handful of activists were able to persuade the filibustering senators that it was better to unravel the Senate’s messy but still-effective ecosystem than to do the hard work of persuading their Republican colleagues to oppose the nominees on the merits. We have a far less productive Senate today because of those judgment errors in 2003. But, as you’ve discussed, it’s also because of those two years of conflict that the Senate was able to confirm Justices John Roberts and Sam Alito, each of whose nominations I worked on.

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Steven Duffield is now a consultant in Washington, D.C., where he advises nonprofit and corporate clients on politics, policy, and Senate procedure.