In thinking about how we got to the point where the Senate may need to act to eliminate judicial filibusters, it’s worth remembering a little history from the beginning of this administration.
Four years ago this past Monday, on May 9, 2001, President Bush held an event in the East Room to introduce to the country and to the Senate his first 11 nominees to the federal bench. He invited leaders from both parties. I distinctly remember seeing Senator Leahy–then chairman of the Judiciary Committee–in the room. There were a record number of judicial vacancies, including numerous judicial emergencies designated by the non-partisan Administrative Office of the U.S. courts, and President Bush had moved with record speed to get a slate of nominees up to the Senate.
The president presented a slate of well-qualified, mainstream nominees. The slate was racially diverse. It included a mix of men and women. And, perhaps most importantly, it included both Republicans and Democrats. People forget this, but two of the original eleven were judges originally nominated by President Clinton: Roger Gregory and Barrington Parker. In the case of Judge Gregory, it was the first time in history that a president had re-nominated a failed circuit-court nominee originally nominated by his predecessor from the other political party. This was unprecedented and highly significant, and it was intended to send a message. It was an olive branch. The president highlighted it in his speech that day, asking the Senate to move beyond the bitterness of the past in the judicial wars and to start afresh in a spirit of cooperation and good faith.
The Democrats took the olive branch the president extended and slapped him in the face with it. They immediately held hearings for, and confirmed, the two Democrats among the nominees and then held up the rest, refusing even to hold hearings for a long time on most of them. They then complained incessantly (and, for the most part, falsely) about not having been adequately consulted by the White House with regard to these nominations. And they executed the play suggested by Professor Tribe, Marcia Greenberger, and others at a Democratic strategy session on how to block Bush judicial nominations–a session held before the president had even taken office–when they scheduled hearings under Senator Schumer to try to legitimize the notion that judicial nominations could be blocked on ideological, rather than competence grounds.
This sent the strongest possible message to those of us in the White House that there was no interest at all in cooperation or good faith from the Democratic side and that they were determined from the start to try to frustrate the new president’s efforts to fill judicial vacancies. The Democrats were alarmed that the president had begun by focusing on appellate appointments; that those appointments were concentrated in circuits where the partisan balance was close; and that the president appeared determined to appoint highly qualified minorities and women, such as Miguel Estrada and Priscilla Owen.
The president tried to change the tone, but he was shouted down. This is where the genesis of the conflict that has led us to the brink of the nuclear option really began, at least in this administration. When the Democrats later lost the Senate, they simply shifted tactics, using the filibuster to accomplish what they could no longer use control of the Judiciary Committee to do.
The ultimate proof that the Democrats escalated this conflict beyond all reasonable or defensible proportions is this: Today, more than four years after the East Room event, three of the original eleven nominees still have never received an up-or-down confirmation vote in the Senate.