Was the Gang of 14 Agreement Better in the Long Run?

If the filibuster had been abolished in 2005, would we have Justice Alito?

Twenty years ago, I wished very much that Senate Republicans had succeeded in abolishing the filibuster—the 60-vote cloture threshold—for federal appellate and Supreme Court seats. I still believe that what Senate Democrats derided as the “nuclear option” was the most sensible path for Senate Republicans to pursue, given what they could reasonably have foreseen at the time.

But hindsight suggests a different assessment: From the perspective of legal conservatives, the Gang of 14 Agreement probably turned out to be much more beneficial than filibuster abolition would have been, with respect both to appellate judges and especially to Supreme Court justices. Ironically, if the filibuster had been abolished in May 2005, Samuel Alito might well never have become Justice Alito. Further, Senate majority leader Mitch McConnell would have had a more difficult challenge in February 2016 unifying Senate Republicans around his monumental decision to keep the vacancy resulting from Justice Antonin Scalia’s death open through the November 2016 election. If McConnell hadn’t succeeded, Donald Trump probably wouldn’t have been elected and wouldn’t have appointed three justices.

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Let’s indulge some counterfactual history and ponder what would have happened if Senate Republicans had succeeded in abolishing the filibuster in May 2005. I’m not going to indulge in “fluttering of a butterfly’s wings” speculation but will instead try to keep my assumptions modest. In particular, I will assume that Barack Obama would still have been elected to two terms as president and that control of the Senate would have flipped back and forth between Republicans and Democrats exactly as it did.

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Let’s start with the impact of the survival of the filibuster on appellate nominations.

As we have seen, after the Gang of 14 Agreement was reached in May 2005, it promptly led to the confirmations of the three nominations on which signatories committed to support cloture: Priscilla Richman Owen (Fifth Circuit), Janice Rogers Brown (D.C. Circuit), and William Pryor (Eleventh Circuit). There was only one appellate nomination by George W. Bush in the remainder of the 109th Congress (2005-2006) that Senate Democrats tried to filibuster—Brett Kavanaugh’s nomination to the D.C. Circuit—and that filibuster effort failed.

The Gang of 14 Agreement abandoned two existing nominations. The prospect of a filibuster might have prevented Senate floor action in 2006 on two or three other nominations. It’s also possible that Bush might have made more aggressive conservative nominations in 2005 and 2006 if the filibuster has been abolished.

Democrats had control of the Senate in 2007 and 2008, so they didn’t need the filibuster during those last two years of Bush’s presidency.

During the first two years of Barack Obama’s presidency, Senate Republicans had only 40 to 42 seats. Their number increased to 47 for 2011 and 2012, when they successfully filibustered two of his appellate nominees—Goodwin Liu to the Ninth Circuit and Caitlin Halligan to the D.C. Circuit. Obama also withdrew two other appellate nominations because he didn’t want to fight a filibuster. It also appears that the prospect of a filibuster led him to shy away from other controversial picks.

By mid-November 2013, six Obama judicial nominees had suffered a total of seven defeated cloture motions over a period of nearly five years. By contrast, George W. Bush’s appellate nominees encountered a total of twenty defeated cloture motions in the two years after Senate Democrats launched the filibuster. Showing that they could dish it out but not take it, majority leader Harry Reid and his fellow Democrats succeeded in doing what Senate Republicans had failed to do in 2005: use a majority vote in the Senate to abolish the judicial filibuster.

Democrats’ abolition of the filibuster, though, benefited them for only one year under Obama, as Republicans won back control of the Senate for Obama’s last two years.

Overall, the filibuster existed for nearly the first five years of Obama’s presidency. It probably had no impact during his first two years, when Republicans barely had the votes to wage a filibuster. But even if it constrained him for only around three years, that’s roughly double the time after the Gang of 14 Agreement was reached that its survival constrained Bush and his Senate Republican majority.

Senate Democrats did not successfully filibuster any Bush nominees after the Gang of 14 Agreement was entered. Senate Republicans, by contrast, defeated two of Obama’s nominees and delayed the confirmation of a third.

There are a lot of imponderables here, so I won’t insist that the survival of the filibuster after the Gang of 14 Agreement was executed ended up hurting Obama more than Bush on appellate nominees. But there’s good reason to think that was the case.

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The impact of the survival of the filibuster on Supreme Court appointments is more intriguing. Ironically, Samuel Alito might never have been nominated if the filibuster had been abolished in May 2005. And in 2016 Mitch McConnell would have had a more difficult challenge in forging unity among Republicans to preserve the Scalia vacancy through the November election.

Let’s start with George W. Bush’s three Supreme Court nominees in 2005: John Roberts, Harriet Miers (failed nomination), and Samuel Alito.

Presidents are constrained and influenced by political considerations in selecting their Supreme Court nominees, and there is ample reason to believe that Bush would have picked Roberts (first for O’Connor’s vacancy, then, upon William Rehnquist’s death, for the chief justice’s seat) even if the filibuster had been abolished. By Bush’s own account (in his memoir Decision Points), Roberts stood apart from the other candidates Bush interviewed, and Bush believed Roberts “would be a natural leader” who would be very effective at “convincing his colleagues through persuasion and strategic thinking.”

The Miers pick is much more complicated. On the heels of Roberts’s confirmation as chief justice, Bush “felt strongly that I should replace [O’Connor] with a woman,” but he ran into “frustrating roadblocks” on one female candidate after another. Bush says in particular that recently appointed Fifth Circuit judge Priscilla Richman Owen was a “top choice on the list,” but that he was advised that “the fight [over her nomination] would be bloody and ultimately she would not be confirmed.” So by Bush’s own account he might well have nominated Judge Owen (who since 2022 has re-adopted her maiden name Richman) if the filibuster had not existed. After “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well” (quoting Karl Rove’s memoir), Bush calculated (mistakenly) that Miers had an easy path to confirmation and nominated her.

Priscilla Richman Owen

If the filibuster had been abolished and Bush had nominated Owen, the Republican majority in the Senate would very likely have confirmed her nomination, and Judge Alito would never have become Justice Alito.

Upon the collapse of Miers’s nomination, Bush nominated Alito in the face of a possible filibuster threat, and the White House skillfully navigated its way past any real threat (only to encounter John Kerry’s laughable fili-bluster from Davos, Switzerland at the very end).

On Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan in 2009 and 2010: Obama had 59 Democratic senators when he made each nomination, and picking up a few Republicans would be easy on any nomination that his White House would find politically sensible, so he had no reason to fear a filibuster.

The Gang of 14 Agreement’s rescue of the filibuster in 2005 might well have had great impact after Justice Scalia’s death in February 2016. Senate Republicans were still angry at Harry Reid and Senate Democrats for abolishing the filibuster for lower-court (and executive-branch) nominees just 27 months earlier. In the Republican view, Democrats had illegitimately departed from longstanding practice by launching their campaign of partisan filibusters in 2003, and they had vigorously fought the Republican effort to abolish the filibuster in 2005. Yet when the filibuster came back to bite them, they raced to abolish it. Republican anger at what they perceived (rightly or wrongly) to be unfair Democratic tactics made it much easier for majority leader Mitch McConnell to herd them to commit to take no action on any nomination that Obama would make to fill Scalia’s vacancy.

Counterfactual history being what it is, I of course can’t prove that McConnell would have failed to unify Republicans around his strategy if Republicans had abolished the filibuster way back in 2005. But anger is a mobilizing force, and the challenge would have been much more difficult without it.

The rest is real history. But for McConnell’s success in keeping the Scalia seat open, it is highly doubtful that Donald Trump would have eked out his narrow victory in November 2016. If no President Trump, no Justice Gorsuch, no Justice Kavanaugh, no Justice Barrett. The Court would likely have a six-justice liberal majority.

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Sometimes you get lucky and things work out much better than you expect. That sure seems to have been the case with the Gang of 14 Agreement.