Cases and Controversies: George W. Bush's Appeals Court Nominations
IN THIS ARTICLE
In his eight years as President, George W. Bush appointed two Supreme Court justices, 61 Appeals Court judges, and 261 Federal District Court judges. This article examines his appeals court nominations. Specifically it looks at eleven of the most controversial nominations that were held up in the Senate and their eventual outcomes.
A president’s judicial appointments can be one of that president’s longest lasting legacies. The people President Bush named to the judiciary will be making decisions and affecting policy long after Bush leaves office.
In 2005, Sonia Sotomayor said the “Court of Appeals is where policy is made.”1 Though this was seen as controversial by those that opposed her appointment, she was right. Courts today, especially the Supreme Court and appeals courts, make policy that has just as much of an impact on Americans’ lives as do the laws that Congress passes. President Bush recognized this fact and took his power to appoint judges very seriously.
White House Process
Though it is hard to know exactly how the nomination process worked in the White House because those involved in the process have remained relatively silent, we do know some details. In the Bush administration, a group called the Judicial Selection Committee (JSC) met twice weekly or as needed to discuss judicial appointments. The JSC consisted of Assistant Attorney General Viet Dinh, the Office of Legal Policy, White House Counsel Alberto Gonzales, and Associate White House Counsel Brett Kavanaugh. A different group composed of higher level administration officials has also been mentioned as meeting to discuss judicial appointments. This group consisted of the White House Counsel’s Office, White House Chief of Staff, Attorney General, and presidential advisor Karl Rove.2
Regardless of which group was more involved in Bush’s judicial appointments it is clear that President Bush himself was very involved in the process:
…direct presidential approval of each nominee was required at two points in the process: (1) before any detailed vetting took place, and (2) after extensive vetting but before the formal nomination was made.3
Changes from Previous Administrations
President Bush also made a number of changes to the judicial nominating process when he took office. One of the most high profile was the decision to exclude the American Bar Association (ABA) from advanced notice of judicial nominees. In previous administrations, the ABA had been told that someone was being nominated before that information was given to the general public. This gave the ABA the chance to do their own investigation of the nominee, which could then be used during Senate confirmation hearings.
Over the years, however, the ABA came to be seen as a more liberal institution that was harder on more conservative nominees. The ABA especially angered conservatives when, despite giving him their highest rating, “well qualified,” it came out that four of those reviewing Supreme Court nominee Robert Bork voted to give him a “not qualified” rating and one voted to give him a neutral “not opposed” rating.4 After it came out that a minority of the ABA committee had voted not to endorse Judge Bork, Senator Orrin Hatch said, “That's one of the problems we have had with the A.B.A. in recent years, playing politics with the ratings.”5 Bork’s nomination eventually failed in the Senate, which only increased the anger many conservatives felt toward the ABA.
Despite being one of the more controversial changes made, it is not clear how much of an impact excluding the ABA from early notice had on Bush’s nominees. As soon as the Bush administration announced the ABA would no longer be getting special treatment Democrats on the Senate Judiciary Committee announced they would not hold hearings on Bush judicial nominees until the ABA had been given a chance to do their own investigation.6
This may not necessarily be a change from previous administrations but the Bush administration drew a clear line between district court and appeals court judges. While they might be willing to settle for district court nominees they were not fully in favor of, appeals court judges received much more scrutiny. There are a number of reasons for this. First, district court judges essentially take to the law or case precedent and apply it whatever the facts of the case they are deciding are. Appeals courts deal with the much more complicated questions where the law or precedents are not that clear. Second, the appeals court is a good stepping stone to the Supreme Court. All of the current justices on the Supreme Court have served on appeals courts and it is out of the ordinary for a President to nominate someone to the Supreme Court who has not served on an appeals court. Third, there are a lot fewer openings at the appeals court level than at the district court level. President Bush appointed approximately four district court judges for every appeals court appointment. Naming a judge to an appeals court for a reason other than wanting them on the court could be justified (and it was), but that would mean one seat that could not be filled with a conservative judge.
Another change occurred in the way the Senate handled the President’s nominees. When the President nominates someone for a seat, the senators from whatever seat that state is in are given blue slips. If the senator approved of the nominee, he could indicate that support on the slip and return it to the committee. If the senator did not approve of the nominee, he could withhold the slip. Previously, if either senator did not return their blue slip, the committee would normally refuse to hold hearings on the nominee and their nomination would fail.
When Bush took office, Senate Judiciary Committee Chairman Orrin Hatch announced that he would only allow a nomination to be held up if both home state senators withheld their blue slip. Later, he decided to consider each nominee on a “case-by-case basis”7 even if both home state senators withheld their blue slip.8 This was one of the biggest changes made to the confirmation process and will be important later during the discussion of Bush’s Michigan nominees.
Overview of the Controversy
When President Bush came into office, the Senate was evenly split with 50 Republicans and 50 Democrats. Vice President Cheney, as Senate President, cast the tie breaker vote. This gave Republicans control of Senate, including control of the Senate Judiciary Committee. Under this, Republicans could give confirmation hearings to all of Bush’s nominees and send them to the Senate floor even if only on a party line vote. This meant the only way for Democrats to hold up a nominee would be to filibuster that nominee. Republicans had enough votes to win the floor vote but not a big enough majority to overcome a filibuster.
On June 6, 2001, Senator Jim Jeffords, a Republican from Rhode Island, announced he was becoming an Independent and would caucus with the Democrats. This shifted control of the Senate to the Democrats and gave them a majority on the Judiciary Committee. With this control, Senate Democrats no longer had to resort to filibustering judicial nominees they were opposed to. They could simply refuse to vote a nominee out of committee or even refuse to hold hearings on a nominee.
In 2003, Republicans regained enough seats in the Senate to take back control. But this was still not enough to overcome any Democratic filibuster.
These are the eleven nominees I look at in this chapter and the appeals court to which they were being nominated:
David McKeague - 6th Circuit
Henry Saad - 6th Circuit
Richard Allen Griffin - 6th Circuit
Susan Bieke Neilson - 6th Circuit
Miguel Estrada - D.C. Circuit
Priscilla Owen - 5th Circuit
Charles Pickering - 5th Circuit
Carolyn Kuhl - 9th Circuit
William Pryor - 11th Circuit
William Myers - 9th Circuit
Janice Rogers Brown - D.C. Circuit
These nominees can be split into two groups based on the reason their confirmation was opposed by Democrats in the Senate. The first group is simply nominees that were being held up as payback for treatment Democratic nominees has received during the Clinton administration. The second group is nominees that were considered by Democrats to be too conservative to allow on the appeals court.
With the first group I will detail what events led up to the filibuster, why Democrats were so intent on stopping these nominees, and how most of the nominees in this group eventually were confirmed. With the second group I will look at the reasons Democrats gave for opposing these nominees, whether these reasons were of sufficient nature to stop a confirmation, and possible ulterior motives Democrats may have had that they did not discuss publicly.
McKeague, Griffin, and Neilson
At the end of the Clinton administration, the Republican-controlled Congress refused to act on two Clinton nominees to the Sixth Circuit Court of Appeals Helene White and Kathleen McCree Lewis. When Bush took office, he refused to renominate White and Lewis. In response, Michigan Senators Carl Levin and Debbie Stabenow vowed to return negative blue slips on all Michigan judicial nominees.9
Despite negative blue slips from both Michigan senators, Senate Judiciary Committee Chairman Orrin Hatch held hearings on these nominees and sent them to the Senate floor for full consideration. This prompted a Democratic filibuster.
David McKeague was nominated by President Bush on November 8, 2001. Before being nominated he had served on the United States District Court for the Western District of Michigan, originally being appointed by President George H.W. Bush. Susan Bieke Neilson was nominated at the same time as McKeague. Richard Allen Griffin was nominated on June 26, 2002. Before being nominated he served on the Michigan Court of Appeals.
After the Gang of 14 compromise, these three nominees were given floor votes and were confirmed unanimously. They even received the votes of Senators Levin and Stabenow who had returned negative blue slips on them and had been the forces behind their filibuster in the Senate. They actually were not even mentioned in the compromise because there was never a possibility they would meet the “extraordinary circumstances” requirement for filibustering judicial nominees. Democrats had never alleged that any of these nominees were being held up for anything like “extraordinary circumstances.”
Shortly after being confirmed Neilson died of a blood disorder. President Bush originally tried replacing her with Stephen J. Murphy III, the U.S. Attorney for the Eastern District of Michigan. This nomination was also held up in the Senate and Bush eventually appointed Helene White, one of the failed Clinton nominees behind the filibuster.
Henry Saad was one of two in the Gang of 14 compromise that was specifically not guaranteed a floor vote. Saad was originally nominated to the United States District Court for the Eastern District of Michigan by President George H.W. Bush. His confirmation was held up in the Senate Judiciary Committee, controlled by Democrats at the time. In 1994, Saad was appointed to the Michigan Court of Appeals, where he still sits.
During his first filibuster, Saad sent an e-mail to one of his supporters expressing his frustration at Senator Stabenow. In it he says:
This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct.10
He sent one copy to the intended recipient but mistakenly sent a copy to Senator Stabenow. She raised objections with the White House over this but these objections were ignored, even to the point that Bush renominated Saad when his nomination expired.
There was also a question concerning Saad’s FBI background check. After Saad had sent the e-mail, Senator Harry Reid said,
Henry Saad would have been filibustered anyway. He’s one of those nominees. All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I would think we would all agree there is a problem there.11
Senator Leahy, then-Senate Judiciary Committee Ranking Member, also said Saad’s report “contained allegations of a ‘very serious nature.’”12
Because it was confidential, the contents of Saad’s report were never disclosed and it us unknown what, specifically, Reid was referring to. It is worth noting that his FBI report was only brought up after the e-mail came out and any other reasons given for filibustering him were extremely broad comments regarding Saad’s work on the Michigan Appeals Court, nothing that would constitute “extraordinary circumstances.”
On May 9, 2001 President Bush nominated Miguel Estrada to the D.C. Circuit Court of Appeals and Priscilla Owen to the Fifth Circuit Court of Appeals. Two weeks later, he nominated Charles Pickering to the Fifth Circuit and a month after that he nominated Carolyn Kuhl to the Ninth Circuit. This was right around the time Senator Jeffords began caucusing with the Democrats, so these nominees could be held up in the Senate Judiciary Committee.
Miguel Estrada immigrated to the United States when he was 17. He graduated from Harvard Law School in 1986 where he was an editor of the Harvard Law Review. He clerked for Justice Anthony Kennedy in 1988. From 1990 to 1992, he served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section in the Southern District of New York. In 1992, he served as Assistant to the Solicitor General in the Clinton administration.13
The main issue Democrats said they had with Estrada was his refusal to release memos he had written while working in Solicitor General’s office for the Clinton administration. At the time, however, every living former Solicitor General, from Republican and Democratic administrations, supported his decision not to release the documents.
Some claim the real reason Democrats were filibustering Estrada was because they thought he was being set up for a Supreme Court nomination.
Estrada was blocked by Democrats for one reason -- the same reason they blocked Bush's other minority and women nominees: They knew he would be on the short list for the Supreme Court if confirmed. And they knew it's a lot easier to block a nominee at the appeals court level, when no one is paying as much attention as they do to the Supreme Court… It was a deliberate, thought-through strategy.14
These suspicions were well founded. Had Estrada been named to the Supreme Court, he would have been the first Hispanic Supreme Court Justice. Also, of the current members on the Supreme Court, four – Ginsburg, Scalia, Thomas, and Roberts – served on the D.C. Circuit directly before being appointed. Though his nomination failed, Judge Robert Bork also served on the D.C. Circuit Court of Appeals before being nominated by President Reagan. Estrada also was, and continues to be, a favorite of conservatives. President Bush would have had no problem rallying conservatives around an Estrada appointment.
A number of times, President Bush made public comments urging the Senate to give Estrada an up or down vote. After one vote to invoke cloture that failed in 2003, President Bush said of Estrada,
he is a well-qualified nominee to the U.S. Court of Appeals who has been waiting nearly two years for an up or down vote in the United States Senate. The decision today by 44 Senators to continue to filibuster and block a vote on this nomination is a disgrace.15
The subject of the Miguel Estrada filibuster even came up in the Supreme Court Confirmation Hearings for Sonia Sotomayor. Senator Lindsey Graham mentioned the nomination of Miguel Estrada to make the point that opposition to Sotomayor was based not on her ethnicity, but her judicial philosophy. Chairman Patrick Leahy responded to Senator Graham:
I'd just note, just so we make sure we're all dealing with the same facts, Mr. Estrada was nominated when the Republicans were in charge of the Senate, was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority in the Senate…16
While technically accurate, Leahy’s response implies Republicans refused to give Estrada a hearing and it took until Democrats came to power for him to get his hearing. Estrada was nominated May 9, 2001 when Republicans controlled Congress. Fifteen days later, Senator Jeffords announced he was becoming an Independent and would vote to reorganize the Senate, handing power over to the Democrats. Sixteen months after being nominated, the Democrats held a hearing for Estrada, but only because it was clear he would not be voted out of committee. Once Republicans retook control of the Senate in 2003, they voted Estrada out of committee to the full Senate where Democrats started their filibuster of him.17
On September 4, 2003, Estrada withdrew his name from consideration. In a letter to President Bush, Estrada stated, "I believe that the time has come to return my full attention to the practice of law and to regain the ability to make long-term plans for my family.”18 In a written statement President Bush said, “The treatment of this fine man is an unfortunate chapter in the Senate's history.”19
Priscilla Owen was a Justice on the Texas Supreme Court when she was nominated for the Fifth Circuit Court of Appeals. She was one nominee who could have been placed in either the “payback” group or the “conservative” group. Owen was being nominated for a seat left open by Judge William Lockhart Garwood, who had taken senior status in January 1997. President Clinton had nominated two judges, Jorge Rangel and Enrique Moreno, to replace Garwood. Neither had been given hearings by the Republican Senate so it was possible that Democrats were simply treating Owen the same way Rangel and Moreno had been treated.
On May 18, 2005, however, Senator Edward Kennedy made an impassioned speech on the Senate floor attacking President Bush’s judicial nominees. He singled out four nominees for attack – William Myers, Janice Rogers Brown, William Pryor, and Priscilla Owen. Speaking broadly about these four nominees, Kennedy said,
History will judge us harshly if we don't stand tall against the brazen abuses of power demonstrated by these nominees. The issues at stake in these nominations go well beyond partisan division. The basic values of our society -- whether we will continue to be committed to fairness and opportunity and justice for all -- are at issue.20
Speaking on Owen he said,
She has limited the rights of minors in medical malpractice cases. She has tried to cut back on people's right to relief when insurance company claims are unreasonably denied, even in cases of bad faith. Her frequent dissents show a pattern of limiting remedies for workers, consumers, and victims of discrimination or personal injury.21
Later Kennedy said, “Priscilla Owen's record raises major questions about her commitment to the basic rights guaranteed by the Constitution to all our citizens.”22 Nothing like this was ever said about any of the Michigan nominees – even Henry Saad – who were being held up for payback.
Owen was also specifically mentioned in the Gang of 14 compromise as a nominee that would receive a floor vote, implying her nomination might meet the “extraordinary circumstances” standard established in that compromise. Owen was confirmed to the Fifth Circuit Court of Appeals on May 25, 2005, more than four years after being nominated, by a vote of 55 to 43.
Charles Pickering was a judge on the United States District Court for the Southern District of Mississippi when he was nominated for the Fifth Circuit Court of Appeals. Democratic opposition to Pickering was focused mainly on what they saw as a light sentence he gave to a man convicted of cross burning in 1994.
Three men had been out drinking when they decided to burn a cross in the yard of an interracial married couple. Because it was a cross burning, the Office of Civil Rights in the Justice Department became involved. Two of the defendants pled guilty and the third, Daniel Swan, was found guilty. Pickering decided to sentence Swan to only two and half years in jail.
In response to this sentence, during the appeals court controversy, Senator Charles Schumer said,
“Why anyone would go the whole nine yards and then some to get a lighter sentence for a convicted cross burner is beyond me. Why anyone would do that — in 1994 and in a state with Mississippi's history — is simply mind-boggling.”23
Some of the facts surrounding the case are not as clear, however, as Senator Schumer made them seem. The Civil Rights Division struck a deal with the two defendant who pled guilty – one of them because he had a low IQ and the other because he was a minor. Byron York, then a writer for the conservative magazine National Review, summarizes the case well:
During the course of testimony, Pickering came to suspect the Civil Rights Division had made a plea bargain with the wrong defendant.
"It was established to the satisfaction of this court that although the juvenile was younger than the defendant Daniel Swan, that nevertheless the juvenile was the ring leader in the burning of the cross involved in this crime," Pickering wrote in a memorandum after the verdict.
In addition to the 17-year-old's role as leader, there was significant evidence, including the fact that he had once fired a shot into the mixed-race couple's home, suggesting that he had a history of violent hostility to blacks that far outweighed any racial animosity felt by Daniel Swan. Swan had no criminal record, and seven witnesses testified that they were not aware of any racial animus he might have held against black people.24
The Civil Rights Division was requesting that Swan be sentenced to five years on one count and two and half years on another count. Shortly before sentencing, however, they dropped the five year request.
On October 30, 2003, Pickering’s nomination was voted on in the Senate but failed to achieve cloture. On January 16, 2004, President Bush recess appointed Pickering. Unable again to achieve cloture, Pickering announced in December 2004 that he was retiring from the bench. Bush nominated Michael Wallace for Pickering’s seat but that nomination was also blocked in the Senate and eventually withdrawn because of Democratic opposition. The seat was eventually filled in 2007 by Leslie Southwick.
Carolyn Kuhl served in the Reagan Justice Department as Deputy Solicitor General, Deputy Assistant Attorney General in the Civil Division, and Special Assistant to Attorney General William French Smith. In 1995, she became a judge on the Superior Court of California for the County of Los Angeles.
There were three reasons Democrats were opposing her appointment to the Ninth Circuit. First, while at the Department of Justice she was in favor of reversing the IRS decision to deny tax exempt status to Bob Jones University. Her basis for this opinion was that Congress, not an administrative agency, should decide that racially discriminatory schools should not receive tax exemption.25
Second, Kuhl dismissed a suit while on the Los Angeles Superior Court made by a woman suing her doctor for allowing a pharmaceutical company representative to observe her breast examination. Kuhl ruled that since the woman did not object to the representative being in the room, she had consented to it.26
Third, Kuhl assisted in drafting the government’s brief in Thornburgh v. American College of Obstetricians and Gynecologists. This brief, written mainly by Acting Solicitor General Charles Fried, urged the Supreme Court to overturn Roe v. Wade. One article written during the appeals court controversy points out a supposed double standard in the treatment Kuhl was receiving:
Most troubling about this attack on Kuhl is the disparity of treatment it represents. Charles Fried, whose name appears first on the brief, has acknowledged that he wrote the “overrule-Roe part of the brief” himself. Yet his nomination as solicitor general later that year was unanimously approved by the Senate Judiciary Committee and he was confirmed by the full Senate by a voice vote, without debate, by several of the same Democrats now opposing Kuhl…
Moreover, the initial draft of the brief was written by John Rogers, whose name appears second on the brief, yet Rogers is now sitting as a Circuit Judge on the 6th Circuit. He was not even questioned about his role in the case during his confirmation hearing, and he was approved by the Judiciary Committee and confirmed by the full Senate on a voice vote.27
When Republicans were in control of the Senate Judiciary Committee in 2003 they were able to give her a hearing and pass her to the full Senate but they were not able to overcome a Democratic filibuster of her. Kuhl withdrew her name from consideration in December 2004, three and half years after being nominated. The seat she was nominated for was filled by another Bush nominee, Sandra Segal Ikuta.
William Pryor served as Alabama’s Deputy Attorney General from 1995 to 1997 and as the state’s Attorney General from 1997 to 2004 where he successfully prosecuted Alabama Chief Justice Roy Moore in his impeachment trial for disobeying a federal court order to remove the Ten Commandments from the Alabama Judicial Building.28
In his floor speech, Senator Kennedy described Pryor as pushing “a radical agenda contrary to much of the Supreme Court's jurisprudence over the last forty years.”29 Kennedy also said:
Mr. Pryor has fought aggressively to undermine Congress's power to protect individual rights. He's tried to cut back on the Family and Medical Leave Act, the Americans with Disabilities Act, and the Clean Water Act. He's criticized the Voting Rights Act. He's been contemptuously dismissive of claims of racial bias in the application of the death penalty. He's relentlessly advocated its use, even for persons with mental retardation.
Mr. Pryor is clearly on the far fringe of legal thinking, and not someone who should be given a life-time appointment to the courts of appeals.30
On February 20, 2004 President Bush recess appointed Pryor to the Eleventh Circuit Court of Appeals. Pryor was one of three specifically mentioned in the Gang of 14 compromise that would not be filibustered in the Senate. He received a floor vote on June 9, 2005 and was confirmed by a vote of 53 to 45.
William Myers was nominated for the Ninth Circuit Court of Appeals on May 15, 2003. Opposition to Myers was focused on his work as Solicitor General in the Department of the Interior and Deputy General Counsel in the Department of Energy in the George W. Bush and George H.W. Bush administrations, respectively. Democratic leaders felt he was hostile to environmental interests.
Of his time in the Interior Department, Senator Kennedy said of Myers:
… [H]e served his corporate clients instead of the public interest. As Solicitor of Interior, he tried to give public land worth millions of dollars to corporate interests. He issued an opinion clearing the way for mining on land sacred to Native Americans, without consulting the tribes affected by his decision -- although he took the time to meet personally with the mining company that stood to profit from his opinion.31
The Gang of 14 compromise specifically mentioned Myers as a nominee that was not guaranteed a floor vote. While it is understandable why Democrats would be opposed to Myers, it is odd that their opposition was so vehement. The only reason to single out a nominee in the compromise as someone who would not receive a floor vote is if that nominee would not meet the “extraordinary circumstances” standard. It does not look like Myers’s work at the Department of Interior and Department of Energy would qualify as “extraordinary circumstances” but Democrats were still intent on not allowing him to be confirmed.
Janice Rogers Brown
Janice Rogers Brown was the last of these judges to be nominated and she may have been one of the most controversial. Brown served as Associate Justice of the California Supreme Court from 1996 until her to the D.C. Circuit Court of Appeals in 2005.
Much of the Democratic opposition to Brown was based off of a politically charged speech she made to the University of Chicago Law School chapter of the Federalist Society in 2000. In it, she says:
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.
In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned.32
She also called the “switch in time that saved nine” where Justice Owen Roberts stopped voting with the conservatives on the Supreme Court and voted to uphold a minimum wage law as “the triumph of our own socialist revolution.”33
In his speech on the floor of the Senate, Senator Kennedy described Judge Brown as a “extreme, right-wing nominee”34 and an “activist who will roll back basic rights.”35 He also said:
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.
No one with these views should be confirmed to a federal court and certainly not to the federal court most responsible for cases affecting government action.36
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.
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.
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. 9th 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.
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