Senate Democrats Quickly Sour on Gang of 14 Agreement
Agreement smooths confirmation path for Samuel Alito
The Senate Democrats who initially celebrated the Gang of 14 Agreement would soon realize that it did not rescue them from their fundamentally weak political position. The more they saw how the Agreement played out, the less they liked it. In particular, the Agreement impaired them from making any serious effort to block George W. Bush’s nomination of Samuel Alito to the Supreme Court in the fall of 2005.
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The Gang of 14 Agreement had immediate foreseeable consequences for the three nominations on which signatories committed to support cloture.
On May 24, 2005—the day after the Agreement was announced—the cloture motion on Priscilla Richman Owen’s nomination to the Fifth Circuit passed with a remarkable 81 votes. A full 36 Democrats voted for cloture on the nomination that Democrats had been obstructing for four years and on which they had defeated four previous cloture motions. On May 25, the Senate confirmed Owen’s nomination by a vote of 55 to 43.
Two weeks later, Bush’s nomination of Janice Rogers Brown to the D.C. Circuit was teed up for action. Brown had been one of the Left’s biggest targets, in part because of fear that Bush would make her the first African American female justice, in part because of the conservative judicial record that she had compiled on the California supreme court, in part because of the prominence of the D.C. Circuit.
On top of those were the boldly libertarian speeches that Brown had delivered. Here are excerpts from one of them:
It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.
At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document.
On June 7, the cloture motion on Brown’s nomination passed with 65 votes. In addition to the seven Democratic signatories to the Gang of 14 Agreement, three moderate Democrats (Kent Conrad of North Dakota, Tom Carper of Delaware, and Bill Nelson of Florida) voted for cloture, thus signaling that they weren’t happy to have been coerced to support Chuck Schumer’s filibuster campaign. On June 8, Brown’s nomination was confirmed by a vote of 56 to 43.
Also on June 8, the cloture motion on William Pryor’s nomination to the Eleventh Circuit passed with 67 votes. Pryor’s candid testimony that he regarded Roe v. Wade as a constitutional “abomination” that had “led to the slaughter of millions of innocent unborn children” made him intolerable to the Left. Bush’s recess appointment of Pryor in early 2004 made him even more objectionable. But Pryor somehow won 12 Democratic votes for cloture, and he was confirmed the next day by a vote of 53 to 45 (winning the votes of two Democrats even as he lost the votes of liberal Republicans Lincoln Chafee, Susan Collins, and Olympia Snowe.)
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The broader and even more significant impact of the Gang of 14 Agreement was on the two Supreme Court vacancies that arose in 2005. I’ve covered the nominations of John Roberts and Samuel Alito (and Harriet Miers) in extensive detail in twenty or so Confirmation Tales posts in the first half of 2024, so I will focus on the politics of the filibuster here.
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.” That meant that when Bush nominated Roberts and Alito, it wasn’t Harry Reid or Chuck Schumer or any other liberal Democrat who would be calling the shots on a possible filibuster. It would be the seven (largely) moderate Democrats who were signatories to the Gang of 14 Agreement—senators who were the least likely to clamor for a filibuster.
The filibuster was off the table on the Roberts nomination from the beginning. On Alito, the White House immediately focused its attention on preventing a filibuster. As the Washington Post reported in an article subtitled “White House Tries to Forestall Filibuster by Targeting ‘Red State’ Democrats,” the White House, instead of having Alito make the usual visits to Democratic members of the Judiciary Committee, 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]
For all the strong rhetoric that liberal Democrats deployed against Alito, the division in their ranks that the Gang of 14 Agreement exposed 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.)
When Alito’s confirmation hearing ended in mid-January 2006, Senate Democrats had little or no prospect of garnering the 41 votes against cloture that they would need in order to muster a successful filibuster against his confirmation. As one professor of politics observed at the time:
Alito did not hand the Democrats the kind of ammunition they needed to generate a groundswell of public support for preventing his appointment. The Democrats needed some show of ideological rigidity or temperamental aggressiveness to spark a reaction that would make the public sympathetic to a filibuster. I don’t think they have that. [Boston Globe, Jan. 13, 2006]
“I do not see the likelihood of a filibuster,” liberal Democratic senator Dianne Feinstein acknowledged right after the hearing. The silence of other Democrats who had strongly supported the filibuster of George W. Bush’s appellate nominees was equally revealing: Patrick Leahy, the lead Democrat on the Judiciary Committee, “refused to answer when asked whether he had heard anything that would justify a filibuster.” Chuck Schumer “also refused to answer a question about the potential for a filibuster.”
None of the seven Democratic signatories to the Gang of 14 Agreement suggested that Alito’s nomination presented “extraordinary circumstances” that would justify a departure from their general opposition to a filibuster. Their support for cloture together with the support of the 55 Republican senators would provide more than the 60 votes needed to defeat a filibuster effort.
That didn’t stop John Kerry from yodeling for a filibuster from the ski slopes of Davos, Switzerland, but his last-minute effort flopped: All of the Gang of 14 members voted for cloture, as did an additional 12 Democrats, and the cloture vote on Alito’s nomination was approved by a vote of 72 to 25.
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As I discussed in my first post on the Gang of 14 Agreement, Democrats initially assured themselves that an “unwritten part” of the Agreement was that nearly all of the Democratic signatories would join in filibustering Bush’s nomination of Brett Kavanaugh to the D.C. Circuit. I’ll address the Kavanaugh confirmation battle more fully soon. Here I’ll just note that the same fundamental vulnerability that Senator Orrin Hatch exploited on the Alito nomination—the threat that Republicans would abolish the filibuster if the Democratic signatories acted unreasonably—doomed the filibuster effort against Kavanaugh.
The cloture motion on Kavanaugh’s nomination in May 2006 was approved with 67 votes. Among the 12 Democratic senators supporting cloture were five of the seven Gang of 14 signatories as well as Joe Biden and a freshman senator by the name of Barack Obama.