The extended Senate debate on the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit has generated pitched battles between party activists around the country and increasingly shrill commentary from pundits. Some claim we are on the verge of a constitutional coup that effectively nullifies a president’s power over judicial appointments. Others respond that we are witnessing a legitimate effort by the Senate minority to prevent the packing of the federal judiciary with right-wing jurists.
How unprecedented is the tactic embraced by Senate Democrats? What accounts for the partisan struggle now playing out on the Senate floor? Is there any way out?
Filibusters have been a prominent feature of the Senate since the early 19th century. While the constitutional framers built no supermajority requirements for the passage of legislation or the confirmation of appointees, the early Senate, unlike the House, did away with its motion on the previous question that would have allowed a majority to cut off debate and proceed with a vote. As a consequence, for virtually all of their chamber’s history Senators have been able to postpone or prevent floor action by talking at length.
Under pressure from President Woodrow Wilson, the Senate adopted a cloture provision in its rules that allowed a supermajority to cut off debate. For much of the 20th century the filibuster was mostly reserved for issues of great national moment. In the past several decades, the Senate has seen the routinization of the filibuster, to the point where it is commonly accepted by both parties that with limited exceptions, 60 votes are needed to pass controversial matters. Some exceptions are built into the rules. The budget process provides for limited debate on budget resolutions and reconciliation bills, thereby empowering a majority of Senators. Other exceptions flow from informal understandings or norms. One of those norms is that the minority party does not use extended debate to kill judicial nominations favored by a majority of Senators.
During periods of divided party government, the Senate majority can frustrate the president’s ability to fill judicial vacancies simply by refusing to schedule committee hearings or votes on nominees. Between 1995 and 2000, roughly a third of President Bill Clinton’s circuit court appointees were killed in this manner by the Republican majority, holding open judgeships that President Bush now seeks to fill. The Democrats responded in kind to a number of President Bush’s nominees during their brief time in the majority.
The crunch comes when one party controls both the White House and Senate. Minority Members can try to delay action on judicial nominees with holds and procedural moves in committee. But their doomsday weapon is the filibuster. The norms of the Senate mitigate against firing that weapon as part of an explicit party strategy. Nonetheless, groups of Senators have engaged in extended floor debate to try to defeat judicial nominations. More than a dozen cloture motions were filed to end filibusters on judicial nominations between 1980 and 2000. But only one judicial nominee was successfully blocked by a filibuster. In 1968 Republicans and Southern Democrats used a filibuster to defeat President Lyndon Johnson’s effort to elevate Justice Abe Fortas to chief justice.
So the Senate Democrats’ resort to a filibuster on the Estrada nomination is not unprecedented but it is highly unusual and extreme by Senate conventions. It is the latest escalation in what has been an intensifying “War of the Roses” between the parties in Washington. Earlier episodes included divisive battles over the Supreme Court nominations of Robert Bork and Clarence Thomas; the winter 1995-96 budget fights that led to government shutdowns; and the long-running independent counsel investigations of Clinton, leading to his impeachment by the Republican House.
That war is partly a consequence of razor-thin majorities in the Congress, the increasing ideological polarization between the parties, and the extension of the permanent campaign to the Congress. It has intensified as a result of the circumstances and leadership style of George W. Bush’s presidency.
Bush was elected in 2000 in the closest and arguably most controversial presidential election in U.S. history. He lost the popular vote but won a bare majority of the electoral vote thanks to flawed ballot designs in two Florida counties and to an audacious 5-4 Supreme Court decision to halt a statewide recount.
Yet he has governed with great ambition and confidence, asserting presidential prerogatives and advancing a bold conservative agenda through policy proposals and nominations. He has played hardball with Democrats, in D.C. and on the 2002 campaign trail, while providing regular sustenance to his conservative base. After the 2000 election and then again after Sept. 11, 2001, Democrats expected something akin to a government of national unity. Instead, they encountered a president who seemed determined to wage institutional, ideological and partisan war. They have decided to reciprocate. The atmosphere is poisonous. Miguel Estrada is now a part of that war.
The only way to break this cycle of escalation is for Bush to take pre-emptive action by submitting a more balanced ticket of judicial nominees and engaging in genuine negotiation and compromise with both parties in Congress. That seems most unlikely.