Bench Memos

Law & the Courts

A Filibuster Milestone

President George W. Bush with judicial nominee, Priscilla Owen in the Oval Office at the White House in Washington, D.C., May 24, 2005. (Shaun Heasley/Reuters)

Some milestones are worth celebrating, others not so much. April 4 marked the 16th anniversary of a record-setting fourth filibuster of a highly qualified Hispanic nominee to the U.S. Court of Appeals.

The Senate’s process for evaluating and deciding whether to approve nominations to judicial or executive branch positions worked quite well for nearly two centuries. Very few nominees provoked confirmation fights, and even fewer were defeated.

Most of the time, the two party leaders informally decided how long to debate a nomination and when to schedule a final confirmation vote. They rarely had to resort to the cumbersome, time-consuming process under Senate Rule 22 to invoke cloture, or end debate, on nominations. In fact, even though Rule 22 could apply to nominations since 1949, the Senate never took a cloture vote on a nomination until 1968.

From 1968 to 2002, the Senate took a cloture vote on just 28 nominees, fewer than one per year. Only 10 of those votes failed (resulting in a filibuster) and only three of those nominees were ultimately not confirmed. In 1980, the Senate took three cloture votes on a nominee to the National Labor Relations Board, the third one passed, and he was confirmed.

That record stood for 23 years. On April 4, 2003, the Senate took its fourth cloture vote on the nomination of Miguel Estrada to be a federal appeals court judge. The Senate would take three more on the Estrada nomination; every one of them failed, and this highly qualified nominee was never confirmed.

Incidentally, April 8 marks the 16th anniversary of perhaps the most audacious statement ever uttered in the Senate about filibustering nominations.

President George W. Bush nominated Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit on May 9, 2001. Democrats refused to even give her a hearing during the 107th Congress, so Bush re-nominated her on January 7, 2003. Republicans again controlled the Senate, and the Judiciary Committee sent her nomination to the full Senate.

On April 8, Sen. Robert Bennett (R-Utah) tried to reach an agreement with Majority Leader Harry Reid (D-Nev.) for debating and voting on the Owen nomination. Bennett offered six hours of debate, then 10 hours of debate. Finally, Bennett asked whether “any number of hours would be sufficient.” Reid then uttered these words, which shall forever have a special place in the annals of confirmation obstruction: “There is not a number in the universe what would be sufficient.”

Democrats knew Owen was highly qualified, and they knew they did not have the votes to defeat her nomination. The only way they could keep her off the bench was to prevent the Senate from voting at all. That’s a filibuster, and it never used to be part of the confirmation process.

Such negative milestones are worth marking, but only to remind us of the mistakes of the past that should not be repeated.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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