Cases and Controversies: George W. Bush's Appeals Court Nominations

Janice Rogers Brown's record shows a deep hostility to civil rights, to workers' rights, to consumer protection, and to a wide variety of governmental actions in many other areas -- the very issues that predominate in the D.C. Circuit.

Perhaps most disturbing is the contempt she has repeatedly expressed for the very idea of democratic self-government.

After her eventual appointment, Brown was mentioned as a possible Supreme Court nominee, opening up another reason the Democrats may have tried to block her. This would have been a good choice for Bush for two reasons. First, her conservative credentials are very solid. Like Estrada, she is a favorite of conservatives. Second, it would have allowed President Bush to make history by appointing the first African American woman to the Supreme Court and would have made it politically difficult for the Democrats to oppose her appointment.

Brown was specifically mentioned in the Gang of 14 compromise as a nominee that would receive a floor vote. On June 8, 2005 she received that floor vote and was confirmed 56 to 43.

The “Nuclear Option” and the Gang of 14

Under Senate rules, debate on a general vote is unlimited. Debate can be ended by invoking cloture but only with a 3/5 majority – 60 votes. This means that a determined enough minority of 41 Senators can stop action on almost anything the Senate is considering, including judicial appointments.

To change the rules is even harder. A Senate rules change requires the same simple majority to pass but 67 votes (the same amount required for a constitutional amendment) to invoke cloture. If the Republicans had had enough Senators to change the rules the normal way, they would have had enough to invoke cloture without changing the rules.

The other option available to Republicans to overcome the Democratic filibusters was termed the “nuclear option.” This involved bringing the President of the Senate, Vice President Cheney, in to interpret the rule. Under Senate rules, the President of the Senate is allowed to make rulings from the bench that are binding. A Republican senator could raise a point of order that the filibuster for judicial nominations is unconstitutional because requiring more than a simple majority violates the phrase “advice and consent.” Cheney could then agree and get rid of the filibuster right then. A Democratic senator could then request an appeal but this appeal could be tabled with a simple majority vote. At this point, Cheney’s ruling would have the same force as a standing rule of the Senate.

A Republican, Senator Trent Lott, was the first person to use the term “nuclear” when discussing this option.³⁷ Eventually, the Democrats and the media at large adopted it to signify what would happen to the Senate if the Republicans went through with it. Democratic Senator Charles Schumer said it would turn the Senate “into a nuclear waste -- into a legislative wasteland.”³⁸ Lott later tried to back away from his use of the word “nuclear.” He said he preferred to call it the “constitutional option” but this term never caught on.³⁹

This ended when the Gang of 14, seven Republicans and seven Democrats came together and signed a memorandum of understanding regarding judicial nominees. The Republicans, led by Senator John McCain, agreed to not vote for any change in Senate rules that would change the requirement of 60 votes to invoke cloture on a judicial nominee. The Democrats, led by Senator Ben Nelson, agreed to vote for cloture on three nominees (Janice Rogers Brown, William Pryor, and Priscilla Owen), made no agreement on cloture on two other nominees (William Myers and Henry Saad), and agreed to only vote against cloture for future nominees in “extraordinary circumstances.” What constituted “extraordinary circumstances” was left up to each individual senator.

Conclusion

Despite the controversial nature of his appeals court nominations, President Bush likely achieved much of what he was hoping to achieve in the federal judiciary. Out of the eleven profiled here, six were eventually confirmed by the Senate. Considering that these were come of the most controversial, that is a fairly high success rate.

The Bush administration and Senate Republicans were able to get these confirmations, as well, without having resort to a drastic measure like the “nuclear option” which would have had horrible consequences for them now that they are the minority in the Senate.

Most interesting is what President Bush’s legacy will be concerning federal judicial appointments. Most early analyses seem to say that while President Bush might not be remembered for his judicial appointments, they may have been one of the most successful parts of his administration. Bush able to get most of his nominees confirmed but, more importantly, he was able to get the kind of nominees he wanted on the judiciary confirmed.

1. Martina Stewart, “Sotomayor: 'Policy is made' at Appeals Court,” CNNPoliticalTicker, May 26, 2009, http://politicalticker.blogs.cnn.com/2009/05/26/sotomayor-policy-is-made-at-appeals-court/?fbid=YdULOf-tloH.
2. Lori A. Johnson and Michael P. Moreland, “A Legal Revolution?: The Bush Administration’s Effect on the Judiciary and Civil Justice Reform,” Judging Bush, Studies in the Modern Presidency, ed. Robert Maranto, Tom Lansford, and Jeremy Johnson (Stanford, California: Stanford University Press, 2009), 137-138.
3. Ibid., 138.
4. Stuart Taylor, Jr., “A.B.A. Panel Gives Bork a Top Rating But Vote is Split,” New York Times, September 9, 1987, http://www.nytimes.com/1987/09/10/us/aba-panel-gives-bork-a-top-rating-but-vote-is-split.html?pagewanted=1.
5. Kenneth B. Noble, “Hatch Assails A.B.A. Over Vote on Bork,” New York Times, September 10, 1987, http://www.nytimes.com/1987/09/11/us/hatch-assails-aba-over-vote-on-bork.html?pagewanted=1.
6. Lori A. Johnson and Michael P. Moreland, “A Legal Revolution?: The Bush Administration’s Effect on the Judiciary and Civil Justice Reform,” Judging Bush, Studies in the Modern Presidency, ed. Robert Maranto, Tom Lansford, and Jeremy Johnson (Stanford, California: Stanford University Press, 2009), 138.
7. David A. Yalof, “In Search of a Means to an End: George W. Bush and the Federal Judiciary,” The George W. Bush Legacy, eds. by Colin Campbell, Bert A. Rockman, and Andrew Rudalevige, (Washington: CQ Press, 2008), 190-191.
8. Ibid.
9. Byron York, “Much More Dem Obstruction,” National Review Online, http://article.nationalreview.com/268265/much-more-dem-obstruction/byron-york.
10. Byron York, “Harry Reid Steps Over the Line – Again,” National Review Online, http://old.nationalreview.com/york/york200505130859.asp.
11. Ibid.
12. Ibid.
13. Elsa Walsh, “Minority Retort,” Annals of Politics, The New Yorker, August 8, 2005, http://www.newyorker.com/archive/2005/08/08/050808fa_fact?currentPage=all.
14. Jan Crawford Greenburg, “The Fight Over Miguel Estrada Continues,” Legalities, ABC News, July 13 2009, http://blogs.abcnews.com/legalities/2009/07/the-fight-over-miguel-estrada-continues.html.
15. Tony Snow, Julie Asher, and Associated Press, “Senators Fail to End Debate on Estrada,” Fox News, March 6, 2003, http://www.foxnews.com/story/0,2933,80439,00.html.
16. Ed Whelan, “Senator Leahy’s Level of Integrity,” Bench Memos, National Review Online, July 13, 2009, http://bench.nationalreview.com/post/?q=MDkwZDNmZDhlZjhjMDUzNTQ1MWFkNzViYzI0M2Y5MTc=.
17. Ibid.
18. Dana Bash, “Estrada withdraws as judicial nominee,” CNN, September 5, 2003, http://edition.cnn.com/2003/ALLPOLITICS/09/04/estrada.withdraws/.
19. Ibid.
20. Edward M. Kennedy, “Statement by Senator Edward M. Kennedy on Nominations of Priscilla Owen, William Myers, Janice Rogers Brown, and William Pryor,” http://web.archive.org/web/20050528103838/http://kennedy.senate.gov/~kennedy/statements/05/05/2005518C55.html.
21. Ibid.
22. Ibid.
23. Byron York, “The Cross Burning Case: What Really Happened,” National Review Online, http://article.nationalreview.com/267599/the-cross-burning-case-what-really-happened/byron-york
24. Ibid.
25. John C. Eastman, “The New Glass Ceiling,” Judge Carolyn Kuhl Nomination to the U.S. 9^th Circuit Court of Appeals, Center for Individual Freedom, http://www.cfif.org/htdocs/freedomline/current/guest_commentary/judge_carolyn_kuhl.htm.
26. Neil A. Lewis, “Judge Wins Committee Vote, But Confirmation is Uncertain,” New York Times, May 9, 2003, http://www.nytimes.com/2003/05/09/us/judge-wins-committee-vote-but-confirmation-is-uncertain.html?sec=health.
27. John C. Eastman, “The New Glass Ceiling,” Judge Carolyn Kuhl Nomination to the U.S. 9^th Circuit Court of Appeals, Center for Individual Freedom, http://www.cfif.org/htdocs/freedomline/current/guest_commentary/judge_carolyn_kuhl.htm.
28. The White House, Judicial Nominations – Judge William H. Pryor, Jr., http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/pryor.html.
29. Edward M. Kennedy, “Statement by Senator Edward M. Kennedy on Nominations of Priscilla Owen, William Myers, Janice Rogers Brown, and William Pryor,” http://web.archive.org/web/20050528103838/http://kennedy.senate.gov/~kennedy/statements/05/05/2005518C55.html.
30. Ibid.
31. Ibid.
32. Janice Rogers Brown, “’A White Shade of Pale’: Sense and Nonsense – The Pursuit of Perfection in Law and Politics,” Speech to Federalist Society at University of Chicago Law School, April 20, 2000, http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm.
33. Ibid.
34. Edward M. Kennedy, “Statement by Senator Edward M. Kennedy on Nominations of Priscilla Owen, William Myers, Janice Rogers Brown, and William Pryor,” http://web.archive.org/web/20050528103838/http://kennedy.senate.gov/~kennedy/statements/05/05/2005518C55.html.
35. Ibid.
36. Ibid.
37. William Safire, “Nuclear Option,” On Language, New York Times Magazine, March 20, 2005, http://www.nytimes.com/2005/03/20/magazine/20ONLANGUAGE.html.
38. Ibid.
39. Ibid.

Bash, Dana. “Estrada withdraws as judicial nominee.” CNN, September 5, 2003. http://edition.cnn.com/2003/ALLPOLITICS/09/04/estrada.withdraws/.

Brown, Janice Rogers. “’A White Shade of Pale’: Sense and Nonsense – The Pursuit of Perfection in Law and Politics.” Speech to Federalist Society at University of Chicago Law School. April 20, 2000. http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm.

Eastman, John C. “The New Glass Ceiling.” Judge Carolyn Kuhl Nomination to the U.S. 9^th Circuit Court of Appeals. Center for Individual Freedom. http://www.cfif.org/htdocs/freedomline/current/guest_commentary/judge_carolyn_kuhl.htm.

Greenburg, Jan Crawford. “The Fight Over Miguel Estrada Continue.” Legalities. ABC News, July 13, 2009. http://blogs.abcnews.com/legalities/2009/07/the-fight-over-miguel-estrada-continues.html.

Johnson, Lori A. and Michael P. Moreland. “A Legal Revolution?: The Bush Administration’s Effect on the Judiciary and Civil Justice Reform.” Edited by Robert Maranto, Tom Lansford, and Jeremy Johnson. Judging Bush. Studies in the Modern Presidency. Stanford, California: Stanford University Press, 2009, 136-153.

Kennedy, Edward M. “Statement by Senator Edward M. Kennedy on Nominations of Priscilla Owen, William Myers, Janice Rogers Brown, and William Pryor.” http://web.archive.org/web/20050528103838/http://kennedy.senate.gov/~kennedy/statements/05/05/2005518C55.html.

Lewis, Neil A. “Judge Wins Committee Vote, But Confirmation is Uncertain.” New York Times, May 9, 2003, http://www.nytimes.com/2003/05/09/us/judge-wins-committee-vote-but-confirmation-is-uncertain.html?sec=health.

Noble, Kenneth B. “Hatch Assails A.B.A. Over Vote on Bork.” New York Times, September 10, 1987. http://www.nytimes.com/1987/09/11/us/hatch-assails-aba-over-vote-on-bork.html?pagewanted=1

Safire, William. “Nuclear Option.” On Language. New York Times Magazine, March 20, 2005. http://www.nytimes.com/2005/03/20/magazine/20ONLANGUAGE.html.

Snow, Tony, Julie Asher, and Associated Press. “Senators Fail to End Debate on Estrada.” Fox News, March 6, 2003. http://www.foxnews.com/story/0,2933,80439,00.html.

Stewart, Martina. “Sotomayor: 'Policy is made' at Appeals Court.” CNNPoliticalTicker, May 26, 2009. http://politicalticker.blogs.cnn.com/2009/05/26/sotomayor-policy-is-made-at-appeals-court/?fbid=YdULOf-tloH

Taylor, Stuart, Jr. “A.B.A. Panel Gives Bork a Top Rating But Vote is Split.” New York Times, September 9, 1987. http://www.nytimes.com/1987/09/10/us/aba-panel-gives-bork-a-top-rating-but-vote-is-split.html?pagewanted=1

Walsh, Elsa. “Minority Retort.” Annals of Politics. The New Yorker, August 8, 2005. http://www.newyorker.com/archive/2005/08/08/050808fa_fact?currentPage=all.

Whelan, Ed. “Senator Leahy’s Level of Integrity.” Bench Memos. National Review Online, July 13, 2009. http://bench.nationalreview.com/post/?q=MDkwZDNmZDhlZjhjMDUzNTQ 1MWFkNzViYzI0M2Y5MTc=.

The White House. Judicial Nominations – Judge William H. Pryor, Jr. http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/pryor.html.

Yalof, David A. “In Search of a Means to an End: George W. Bush and the Federal Judiciary.” Edited by Colin Campbell, Bert A. Rockman, and Andrew Rudalevige. The George W. Bush Legacy. Washington: CQ Press, 2008, 188-212.

York, Byron. “Much More Dem Obstruction.” National Review Online. http://article.nationalreview.com/268265/much-more-dem-obstruction/byron-york.

York, Byron. “Harry Reid Steps Over the Line – Again.” National Review Online. http://old.nationalreview.com/york/york200505130859.asp.

York, Byron. “The Cross Burning Case: What Really Happened.” National Review Online. http://article.nationalreview.com/267599/the-cross-burning-case-what-really-happened/byron-york.