Senate Democrats Intensify Filibuster Campaign
Ten Bush appellate nominees are blocked in 2003 and 2004
In 2003 and 2004, Senate Democrats repeatedly wielded the filibuster weapon that they had initiated against D.C. Circuit nominee Miguel Estrada. In the short term, their expanded filibuster campaign was a great success. But the 2004 elections would invite a different verdict.
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In 2003 and 2004, Senate Democrats deployed the filibuster against ten of George W. Bush’s appellate nominees and defeated a total of twenty cloture votes on those ten nominees. There were 51 Republicans in the Senate then, so the votes of nine Democrats were needed to reach the cloture threshold of 60 votes.
As we have seen, Democrats initiated the filibuster tactic on Miguel Estrada’s nomination to the D.C. Circuit. From March to July 2003, they defeated seven consecutive votes on cloture. Four Democrats consistently voted for cloture from the outset, but not a single additional Democrat joined them over the course of the remaining votes, so Estrada never had more than 55 votes for cloture. In September 2003, he abandoned his nomination.
Fifth Circuit nominee Priscilla Richman Owen was the Democrats’ second target. Four separate cloture votes on her nomination were defeated from May to November 2003. Zell Miller of Georgia and Ben Nelson of Nebraska, who never supported the filibuster weapon, were the only two Democrats to vote for cloture.
Four other nominees lost cloture votes in 2003—Janice Rogers Brown (D.C. Circuit), Charles Pickering (Fifth Circuit), Carolyn Kuhl (Ninth Circuit), and William Pryor (Eleventh Circuit). Only Pickering received votes (two) from Democrats other than Miller and Nelson.
As with Estrada, Democrats targeted Brown because they feared that Bush might appoint her to the Supreme Court. Indeed, when a Supreme Court vacancy did open up in 2005, a senator by the name of Joe Biden, who would later claim credit for appointing the first African American woman to the Supreme Court, threatened a filibuster if Bush tried to make Brown the first African American woman on the Supreme Court.
In July 2004, Democrats blocked cloture on four more appellate nominees—three to the Sixth Circuit (Richard Griffin, David McKeague, and Henry Saad) and one to the Ninth Circuit (William Myers). None received more than 54 votes.
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Senate Republicans couldn’t defeat the filibusters. Although they tried stunts like an all-night session, they couldn’t force Democrats to engage in a “talking filibuster.” As I have explained, a talking filibuster would impose a wildly asymmetrical burden on the senators trying to defeat the filibuster. In order to satisfy the Senate’s quorum rule, all 51 of the Republican senators would have had to be present on the Senate floor at all times. By contrast, Democrats would have needed only one senator on the floor at any particular time—to take and hold the floor when necessary and to contest the presence of a quorum.
Republicans also failed to generate the political pressure on Democrats that might lead them to support cloture. The mainstream media had little interest in calling attention to these nomination battles. In those early years of the Internet, not one American in a hundred had any idea who Miguel Estrada was.
The one option that was in theory available to Republicans was to exercise the Senate’s rulemaking power to abolish the supermajority requirement for cloture on judicial nominees. But majority leader Bill Frist had sounded out Republicans on this option, and he knew that he had no chance of mustering the fifty votes that (along with the Vice President’s tiebreaking vote) would be needed for this measure.
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With the exception of Zell Miller and Ben Nelson, Democratic senators remained broadly united in support of the judicial filibusters. But that unity masked important differences.
For liberal senators from heavily Democratic states, the filibuster fight was a political winner. But for Democrats from more moderate states, the calculus was much more complicated. A typical senator quickly learns that his highest priority is to get re-elected, and for a dozen or so Democratic senators it wouldn’t have been at all clear that an unprecedented partisan campaign of obstruction would be helpful on that score.
Senator Chuck Schumer of New York, the most aggressive advocate of the filibuster, appeared to try to assuage the concerns of these senators as the cloture vote on Janice Rogers Brown neared. As the New York Times reported:
Democratic senators say there is little incentive for them to drop their strategy of opposing some Bush nominees because they have already exposed themselves to whatever political cost they might pay.
Senator Charles E. Schumer, a New York Democrat who has led much of the opposition to some of the nominees, also made the argument on Thursday that “the politics are moving in our direction on this issue.”
“When people realize we are blocking a small number of very ideological conservative judges, they say that’s just fine,” Mr. Schumer said.
One tea leaf suggests that some Democrats weren’t so sure. In July 2004, Senator Blanche Lincoln of Arkansas, who was running for re-election that November, cast her first two votes in support of cloture.
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The November 2004 elections dramatically altered the landscape. President Bush won election to a second term. Senate Republicans gained a net four seats and expanded their majority from a very tight 51-to-49 edge to a much more comfortable margin of 55 to 45. And, most remarkably, as I have spelled out more fully, Republican challenger John Thune defeated Democratic leader Tom Daschle’s bid for a fourth term in a race in which Daschle’s leadership of the filibuster campaign played (as Thune put it) an “amazing” role.
Not long before Election Day, the news broke that Chief Justice William Rehnquist was hospitalized for thyroid cancer. So the prospect of a Supreme Court vacancy was very much on everyone’s mind.
Bill Frist and other Senate Republican leaders knew that they needed to thwart the Democratic filibuster in 2005. And they now had a much stronger hope of doing so.