Primer: Judicial Nominees and the Senate Filibuster

NPR congressional correspondent Brian Naylor and Senior Washington Editor Ron Elving offer a road map for the battle over President Bush's judicial nominations.

Q: What's the general process for nominating and confirming such nominees?

The president usually has a list of potential candidates from which he makes his choice. The list includes suggestions from the senators who represent each state, although the recommendations of senators from the president's own party usually carry more weight.

The nomination is then sent to the Senate and assigned to the Judiciary Committee. Sen. Arlen Specter (R-PA), the committee chairman, will then set a hearing date, and after that a vote. Assuming the nominee survives the committee vote -- which each should, given that Republicans have two more votes on the panel than Democrats -- the nomination then goes to the full Senate.

While nominees only need a simple majority (51 votes) to win confirmation, the opposition can extend debate on a nominee and force a cloture vote (a vote to end debate). Cloture requires 60 votes (three-fifths of the Senate). Currently, Republicans hold 55 seats in the Senate. So unless the GOP can convince five Democrats to vote for cloture, for all intents and purposes, the nomination is defeated because it cannot be brought to a formal confirmation vote.

Q: How many of President Bush's nominees have been kept waiting? How many have been confirmed?

The president's nominees to the district court level of the federal system have not been blocked. The conflict has come at the next level, the appeals court level, which is the intermediary step between trial courts and the U.S. Supreme Court. President Bush has had 57 nominees for the U.S. Court of Appeals. Five never received hearings. Of the 52 who did, 42 have been confirmed, but 10 were blocked by Democrats' use of the filibuster to prevent a floor vote. Three of these nominees subsequently withdrew from consideration, but seven others have returned for renomination in the current Congress.

Q: What's the role of the filibuster in blocking nominees? Where does the filibuster come from? Is it written into Senate rules, or just part of Senate tradition?

According to the U.S. Senate historian's Web site, the use of the filibuster to delay or block legislation (or a nomination) "has a long history."

Here's what the Senate historian had to say:

"The term filibuster, from the Dutch word for a kind of pirate, became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent action on a bill. In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued, since senators believed any member should have the right to speak as long as necessary.

"In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as 'cloture.'

"The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to invoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

"Many Americans are familiar with the hours-long filibuster of Sen. Jefferson Smith in Frank Capra's film Mr. Smith Goes to Washington, but there have been some famous filibusters in the real-life Senate as well. During the 1930s, Sen. Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for 'pot-likkers.' Long once held the Senate floor for 15 hours. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957."

Q: But what about the use of the filibuster to stop judicial nominations?

The filibuster has been primarily associated with legislative debates and controversies, although it has been used in regard to nominees as well. The implicit threat to filibuster, known as "placing a hold" on a particular bill or nominee, is a common tactic to slow or derail a given proposal or individual. By Senate tradition, the identity of the senator placing such a hold is not made public. The Senate Majority Leader may keep that identity secret indefinitely.

With respect to judicial nominations, the most effective tactic in opposition has been to bottle them up in committee. In the later years of the Clinton presidency, the Senate Judiciary Committee, which was controlled by Republicans, did not hold hearings for as many as 60 of his nominees, according to Democrats. They argue that this refusal to even consider President Clinton's nominees was just as effective in blocking them as a filibuster.

Several high-profile nominations have also been defeated in up-or-down votes on the Senate floor, the most recent being President Reagan's nomination of Robert H. Bork in 1987. But the use of the filibuster has not been unknown. Democrats point to the 1968 nomination of Abe Fortas to be Chief Justice of the Supreme Court.

Fortas was already an associate justice, and President Lyndon B. Johnson wanted him to take the reins when Chief Justice Earl Warren retired. Republicans balked, hoping they would have the White House soon and that a Republican president could name Warren’s successor.

Many conservative Democrats in the Senate were also opposed, primarily Southerners who could tolerate the liberal Fortas on the high court but did not want him to be chief justice. An effort to cut off debate and proceed to a vote on the nomination failed to receive a majority, let alone the two-thirds vote then required for cloture (an end to debate). The majority required for cloture has since been reduced to three-fifths.

Q: Republicans say filibusters were never intended to block votes on judicial nominations, and they have threatened to rule such extended debate out of order if it happens again. Senate Majority Leader Bill Frist calls this "the constitutional option." Democrats call it "the nuclear option." How would this option be exercised?

If Frist should decide to use this tactic, the scenario would probably look like this. A judicial nomination approved by the Senate Judiciary Committee would be brought to the floor for debate. The motion to proceed to consider that nomination would be debatable, and opponents would indicate their intention to debate it at length. This would be taken to mean a filibuster was underway (or soon would be). At some point in that debate, Frist would seek a ruling of the chair (meaning the Senate’s presiding officer) as to the number of votes needed to end the debate (invoke cloture).

The presiding officer, who at such an important moment might well be the constitutional presiding officer, Vice President Dick Cheney, would then rule. It is presumed that Mr. Cheney would rule that a simple majority would be sufficient, because the three-fifths majority requirement should not apply to nominations under the "advise and consent" clause of the Constitution.

Democrats, who dispute this reading of the "advise and consent" clause, would then object. A vote would be held on the ruling of the chair, and a simple majority would be sufficient to uphold that ruling.

If Frist is correct in calculating that at least 51 of the 55 Republican senators will support such a ruling, this scenario would result in the cutting off of debate. The Senate would then proceed to a vote on the nominee, who would be confirmed by a simple majority vote.

Democrats call this the nuclear option because they regard it as akin to the use of a nuclear weapon. They have said they would respond "in kind" to such a move. That means they would exercise their rights as senators to delay or derail any business before the Senate that does not relate directly to national security or public safety.

Q: What's at stake with these nominations? Why are Democrats so opposed to these particular nominees?

Democrats say these nominees are not just conservatives, but radicals whose views are outside the mainstream on issues such as abortion rights, worker protection and the environment. Democrats fear the federal judiciary is being loaded with activists who are hostile to mainstream theory regarding those rights and eager to invalidate the laws and reverse the court decisions on which they are based.

Republicans counter that these nominees have strong personal characteristics and outstanding records. They also argue that presidents are presumptively entitled to choose the judges they prefer. Some Republicans warn Democrats that they risk being seen by the voters as obstructionist.

They point to the case of Tom Daschle, the former minority leader from South Dakota, who lost his Senate seat last year after having been labeled an obstructionist for his role in blocking 10 of Bush's appellate nominees (as well as in thwarting some of the president's policy initiatives). The GOP says that in Daschle's case, the obstructionist label stuck and contributed to his defeat by Republican John Thune.