Bench Memos

The Halligan Filibuster and the New “Gang of 14” Mythology—Part 1

When I read yesterday evening a CQ story (subscription required) in which Senator Charles Schumer stated that the Republican filibuster of the Halligan nomination “declares the Gang of 14 agreement null and void” and that “Democrats feel that this really violated the agreement,” I had to chuckle at Schumer’s brazen shamelessness. There was the architect of the Democrats’ unprecedented campaign of filibusters against Bush 43 nominees, and thus a lead target of the Gang of 14 Agreement, having the gall to claim that Republicans were violating an agreement that expired by its own terms five years ago and that Schumer himself never accepted as in any way constraining his own conduct.

Little did I anticipate that the mainstream media would (eagerly or gullibly?) parrot Schumer’s ridiculous line. The New York Times, for example, in the course of paraphrasing Schumer, states that the Gang of 14 Agreement “has guided the way the Senate has handled most appeals court nominations since 2005.” (It’s possible to read that also as merely paraphrasing Schumer, but I don’t think that’s the most natural reading.)

The Washington Post cites the Gang of 14 Agreement and notes that the “four GOP members of that group who remain in the Senate” voted against cloture on Halligan. Like the NYT, it doesn’t note that the agreement expired long ago. Even worse, it asserts that “Senate Republicans … noted that Schumer and other Democrats had backed judicial filibusters before the Gang of 14 agreement”—and it thus leaves the wildly false impression that Schumer and most other Democrats abandoned the filibuster after the Gang of 14 agreement was reached.

Similarly, a house editorial in the Post thinks it’s posing a meaningful rhetorical question when it asks:

What happened to the Bush-era bipartisan “Gang of 14” and its pledge to reserve filibusters for those “extraordinary circumstances” in which a nominee’s qualifications or ethics are suspect or her views far outside the mainstream?

(Note also that the question rewrites the Gang of 14 agreement to try to give content to the meaninglessly subjective standard of “extraordinary circumstances.”)

The Los Angeles Times, Roll Call, CNN, NPR, and ABC all provide similar mistreatment. (That’s the entire universe of articles I ran across in How Appealing’s aggregation.) Not a single article sees fit to note that the Gang of 14 agreement expired five years ago.

Given the widespread media confusion on the elementary point of what the Gang of 14 agreement is—or, more precisely, what it was—I’ll repeat the basics:

1. Senate Republicans in May 2005 were exploring using their majority power to eliminate the filibuster of judicial nominees. Called by some the “nuclear option” and by others the “constitutional option,” this proposed reform of the Senate cloture rule arose in response to Senate Democrats’ unprecedented widespread resort to the filibuster to obstruct the confirmations of some ten of President Bush’s federal appellate nominees. (For example, Democrats defeated seven separate cloture petitions on the nomination of Miguel Estrada to the D.C. Circuit.)

The Gang of 14 agreement, signed by seven Republicans and seven Democrats on the eve of a vote on cloture reform, negotiated an end to the filibuster confrontation. (The full text of the agreement is available here.) On the one hand, the signatories to the agreement committed to vote to invoke cloture on three specified nominees—Janice Rogers Brown, William Pryor, and Priscilla Owen—and, as to “future judicial nominations in the 109th Congress,” they committed to the proposition that “Nominees should be filibustered only under extraordinary circumstances.” The term “extraordinary circumstances” was not defined. Rather, the agreement confirmed the broad authority of “each signatory [to] use his or her own discretion and judgment in determining whether such circumstances exist.”

Because there were 45 Democrats in the Senate at the time, the apparent commitment by seven Democrats to support cloture (except in “extraordinary circumstances”) meant that Democrats would generally no longer be able to filibuster judicial nominees. On the other hand, the Republican signatories to the agreement also committed to oppose the proposed cloture reform, so that effort was dead.

The Gang of 14 agreement expressly related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. In other words, the agreement by its own terms stopped having any operative effect at the end of 2006.

2. Senator Schumer, then-Senator Obama, and other Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. That explains how they voted against cloture on the three pending nominees (Brown, Pryor, and Owen) who were specifically named in the agreement and how Schumer and 32 other Democrats (not including Obama, as it happens) voted against, or failed to support, cloture on the nomination of Brett Kavanaugh to the D.C. Circuit.

3. After the agreement expired at the end of 2006, there is no reason that any signatory (much less any non-signatory) would have regarded it as binding. Thus, in October 2007, one Democratic signatory, Senator Landrieu, voted against cloture on the nomination of Leslie Southwick to the Fifth Circuit—a nomination that no one could plausibly claim presented “exceptional circumstances” (insofar as that term can be thought to have any meaning).

More to come in my Part 2 post.

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