The Nuclear Option in the Senate: A Preemptive Strike for Absolute Power

TO: FR: RE: Journalists Ralph G. Neas The Nuclear Option in the Senate: A Preemptive Strike for Absolute Power DATE: February 1, 2005 Introduction A January National Review column by former Senate Judiciary Committee Chairman Orrin Hatch, floor remarks by Senate Majority Leader Bill Frist, and op eds in the Wall Street Journal and elsewhere are clear: the right wing is mounting an all-out attack on the 200-year-old tradition of the filibuster in the Senate to clear the way for President Bush s most extreme, ultra-conservative nominees to the federal bench and, eventually, to the U.S. Supreme Court. To that end, it s obvious that the truth is no obstacle to any argument. Hatch called the use of filibusters in the appointment process unprecedented, unfair, dangerous, partisan, and unconstitutional, and said they created a constitutional crisis. In fact, it is Hatch and Frist who are courting a constitutional crisis of historic proportions through the proposed use of a parliamentary dirty trick, aptly named the nuclear option, to prohibit the use of the filibuster. If successful, they will have eliminated one of the only tools for forcing a majority party that controls both the White House and Congress to engage in bipartisan consultation and cooperation. They are attempting to create a crisis out of whole cloth. Indeed, despite vigorous claims of Democratic obstructionism through use of the filibuster, a recent Wall Street Journal/NBC News poll found that Americans favor keeping the filibuster for judicial nominations by 48% to 39%. Even the one piece of political evidence that Hatch and others repeatedly cite, Senator Tom Daschle s narrow loss to John Thune in last year s election, withers under close scrutiny. As one national reporter who followed the South Dakota race closely wrote: I found only one voter who cited the judicial nominations as a reason for voting against Daschle, and that one was Republican John Thune[.] 1 The nuclear option refers to a narrow majority of the Senate circumventing the Senate s rules and declaring that a simple majority can cut off debate on a judicial nominee. Under the Senate s written rules, 60 votes are necessary to end a filibuster forcing compromise and curbing extremism. And on the weighty matter of changing its own rules, the Senate requires a two thirds vote to end debate. Permitting a bare majority of the Senate to take the unprecedented step of eliminating the 200 yearold tradition of the filibuster would eviscerate the Senate s responsibility under the Constitution to provide advice and consent on judicial nominees and to be a check on Presidential power. I. A Crisis of Convenience 1 David Welna, New Senate Meets Under Nuclear Cloud, National Public Radio, http://www.npr.org/templates/story/story.php?storyid=4468350 2000 M Street NW Suite 400 Washington, DC 20036 Telephone 202.467.4999 Fax 202.293.2672 E-mail pfaw@pfaw.org Web site http://www.pfaw.org

Choosing Crisis over Consultation The legacy of last year s bitterly fought elections is a still narrowly divided House and Senate and a President elected with a narrow majority of the popular and electoral vote. Republican leaders of the House and Senate as well as the President in the days after the election spoke of compromise and healing the nation s divisions. Newly-elected Democratic Leader, Senator Harry Reid (D-NV), took the President at his word and called for returning the judicial nominations process to its traditional cooperative route and restoring advice to the advice and consent clause through bipartisan consultation on nominations. This is not a radical notion. Indeed, Senator Hatch has written that in 1993, President Bill Clinton sought Hatch s advice and input on potential Supreme Court nominees before making a nomination. 2 Yet both the White House and Senate Republican leaders have chosen to ignore the outstretched hand of cooperation. Instead, by threatening use of the nuclear option on the opening day of the 109th Congress in his welcome remarks on the Senate floor, the Majority Leader launched a deliberate and pre-emptive assault on hopes of bipartisanship and comity for the coming Congress. His early belligerence telegraphs Republicans intentions over the next four years to reject a strategy of seeking bipartisan consensus on the critical issues facing the nation, and to instead try to rule the country from the narrow political base of far-right groups and constituencies. Unfair and Partisan Hatch s Shocking Double Standard With the self-sanctimony that only the short of memory can so blithely muster, Hatch argues in the National Review that [u]nprecedented, unfair, and partisan [Democratic] filibusters constitute a political crisis. The truth is that on the issue of blocking nominations, Senate Republicans history (and Hatch s own) has been one of obstruction, hypocrisy and lack of responsibility. As conservative columnist George Will recently noted, Actually, some Republican senators hearts are about as pure as the driven slush after the treatment they dished out to some of President Clinton s judicial nominees. 3 During the Clinton administration, Senate Republicans blocked dozens of Democratic nominees with much less open and accountable procedures like secret holds. Fully one-third of Clinton s appeals court nominees from 1995 through 2000 were kept off the bench many without even a hearing or committee vote while others were delayed for as long as four years. It is rank hypocrisy for the Republicans to claim that a filibuster creates a constitutional crisis because no final up or down vote is held on a nominee when they were willing to prevent many more such votes en masse during the Clinton administration. Republicans blocked over 60 of President Clinton s nominees, often through the actions of just a single Republican Senator. Blaming former Senate Democratic Leader Tom Daschle (D-SD) for the judicial stalemate, Hatch ignores the role that Republicans have played in creating the current contentiousness over court appointments, as well as his own checkered history on the filibuster and other Senate rules and protocols. It is ironic that Hatch has declared himself the defender of fairness, bipartisanship, and precedent, when he has flip-flopped on the issue of filibusters defending their use when he was in the minority and leading the campaign to restrict them when in the majority (as discussed below). 2 Orrin Hatch, Square Peg: Confessions of a Citizen Senator, Basic Books, October 2002, pp 179-180. In fact, at the time that President Clinton engaged in that consultation, Democrats had a larger majority than Republicans do at the present time. 3 Newsweek, December 6, 2004

Hatch s hypocrisy extends far beyond rhetoric. As Chairman of the Senate Judiciary Committee he engineered a number of power plays that demonstrate his willingness to change the rules, abandon precedent and prior agreements essentially to ignore the rule of law in order to secure unimpeded passage of his agenda. Contrary to the plain language of Committee Rule IV and to a position he had taken in 1997 in connection with the consideration of Clinton nominee Bill Lann Lee to be assistant attorney general, and over the strenuous objections of several Democratic Senators, Hatch asserted his unilateral authority as Committee Chairman to call for a vote on judiciary nominees without the support of at least one member of the minority party. On another occasion, despite his past, fervent support of the Committee s policy allowing home-state senators who object to a judicial nominee to delay action in the Committee by not returning a nominee s blue slip, Hatch overrode that policy, pushing forward the nomination of Carolyn Kuhl over the protests of her homestate senator, Barbara Boxer (D-CA). And as Chair of the Committee, Senator Hatch circumvented a longstanding bipartisan agreement, forged in the mid-1980 s by Senators Strom Thurmond (R-SC), Joseph Biden (D-DE), Bob Dole (R-KS) and Robert Byrd (D-WV), that there would be no more than one controversial nominee scheduled at any one time. This agreement was honored under both Republican and Democratic control of the Senate until January 29, 2004, when Hatch held a single confirmation hearing on three controversial appeals court nominees simultaneously Jeffrey Sutton, Deborah Cook, and John Roberts. Ultimately, in the face of enormous pressure, Hatch did provide another hearing for Roberts, but on May 5, Cook was confirmed by the full Senate, never having been subjected to serious public scrutiny, even though Democratic senators objected to the way she was railroaded through committee with the stacked hearing and Hatch s violation of Rule IV, discussed above. 4 II. The Filibuster isn t the Problem A Bulwark Against Extremism The nuclear option not only represents a clear abuse of power; by eliminating the filibuster for judicial nominations it would also change the nature of the Senate and its role in our constitutional system. The Senate was designed to be the more deliberative body in Congress. The current situation with one party dominating the White House and Congress in spite of a narrowly divided national electorate demonstrates the wisdom of our constitutional framework s checks and balances. The Constitution gives the Senate a co-equal role with the President in the appointment of federal judges, who serve in those powerful positions for life. It is the obligation of senators not to function as a rubber stamp for the President s nominees. Senators who act to prevent the confirmation of judges who threaten to undermine Americans rights and freedoms are simply fulfilling their constitutional obligation. Given the utter failure of the majority to reach across the aisle to consult and compromise, and the President s choice to pick nominees whose controversial records prevent them from enjoying significant bipartisan support, the filibuster is now virtually the only tool that Senate Democrats have at their disposal to act as a counterweight to one party rule. As George Will recently wrote, The filibuster is an important defense of minority rights, enabling democratic government to measure and 4 See PFAW Edit Memo, Senator Hatch s Double Standards and Abuse of Power, (March 13, 2003) and PFAW Edit Memo, GOP Leaders Try to Create Constitutional Cover for Illegitimate Power Play, (May 6, 2003).

respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the government juggernaut. 5 Strangely, Senator Hatch argues in his National Review piece that filibusters of judicial nominations are less legitimate than filibusters of legislation or executive branch nominations. Clearly they are different, but he has the difference completely backward: If a demand for 60 votes is legitimate with respect to legislation that future Congresses can revisit, or an Administration appointee with a four year tenure, it is even more appropriate when considering lifetime appointments to powerful positions on the federal judiciary. Furthermore, the filibuster plays a critical role in preserving the essential fairness of the judicial branch. Unlike the other two branches, the federal courts are intended to be objective and nonpartisan, not subsidiaries of either political party. The filibuster rule prevents a President with a narrow majority in the Senate from appointing partisan Justices, or rank ideologues, to the Supreme Court. Revoking this rule would enable a GOP President with a 51-vote Senate majority to appoint Pat Robertson to the Supreme Court, and there would be nothing that the rest of the Senate, or the rest of the country, could do about it. Finally, while Senator Hatch argues that filibusters of judicial nominations have created a political crisis that undermines the judiciary, the record reflects otherwise. In contrast with some Republicans dramatic rhetoric, Senate Democrats have used the filibuster judiciously -- only blocking the worst of the worst of President Bush s nominees. 204 of the President s judicial nominees were confirmed in his first term, only 10 were filibustered. The President has now appointed 23.2% of all active federal judges and 20% of all Circuit Court judges across the country. The vacancy rate on the federal courts is now the lowest it has been in at least 16 years. That Senators Hatch and Frist contemplate parliamentary nuclear war over such a trumped up crisis illustrates that this maneuver is not about ensuring appropriate action on nominations but rather nothing more than fulfilling Republicans desire to have absolute, unchecked power in Washington. 6 The Only Thing Unprecedented are the Distortions It is with respect to the history of judicial filibusters that Senator Hatch and his fellow partisans do the most disservice to the truth -- arguing that Democratic filibusters are unprecedented. While it is true (as discussed above) that Hatch himself resorted to means other than the filibuster to block numerous nominations in the 1990s, use of the filibuster against judicial nominations has a long history. According to the Congressional Research Service, prior to the 108 th Congress, cloture motions had been filed and cloture votes held on 14 Court of Appeals nominations since 1980; as recently as 2000, cloture votes were necessary to obtain votes on the nominations of both Richard Paez and 5 George Will, Shock and Awe in the Senate, Newsweek, December 6, 2004, p 98. 6 Trying to wrap his views in a mantle of respectability, Hatch claims support for his position by citing newspaper editorials criticizing the filibuster. Yet Hatch conveniently overlooks the significant editorial opposition to the nuclear option. (See http://www.earthjustice.org/policy/judicial/commentary/filibuster_commentary.html for a listing of filibuster editorials.) And, of course, that does not take into account the recent Wall Street Journal/NBC News polling data showing that Americans favor keeping the filibuster on judicial nominations by a significant margin: 48% -39%

Marsha Berzon to the Ninth Circuit. Indeed, Senator Frist was among those voting against cloture on the Paez nomination. Democrats have also demanded 60 votes for controversial nominees, such as Edward Carnes, who was nominated to the Court of Appeals for the 11th Circuit in 1992 and J. Harvie Wilkinson, who was nominated to the Court of Appeals for the 4th Circuit in 1984. William Rehnquist s nomination was filibustered twice, first in 1971 when he was nominated to serve as an Associate Justice and then again, in 1986 when he was nominated to be Chief Justice. And, of course, Republicans successfully filibustered the nomination of Abe Fortas to be chief Justice in 1968. Over the years, many other attempted filibusters did not result in a cloture vote. Confronted with these facts, Hatch and others have tried to rewrite history by claiming that the recent filibusters have been the first to defeat nominees supported by a majority of the Senate. Hatch echoes in his National Review column a specious theory propagated by C. Boyden Gray of the right wing Committee for Justice that even though the Fortas nomination was defeated by a cloture vote in which he received more yeas than neas (45-43), he might have been defeated on a straight up or down vote. Gray s exercise in psychic vote counting has been thoroughly rebutted, 7 but one thing is clear: a final vote did not happen. Because of the Republican filibuster, the exact same up or down vote that Republicans have accused Democrats of blocking was denied Fortas. The notion that filibusters only count if they are successful defies reason. Like any other parliamentary device used in the Senate, some filibusters will succeed while others will fail. Just because Senator Frist s filibuster of the Paez nomination was not successful does not change the fact that he voted against ending debate and used the same tactic that he condemns in Democrats. Sen. Bob Smith (R-NH) openly declared he was leading a filibuster of the Paez nomination. The only difference is that in that case it was the filibustering Senators who were out of the mainstream, not the nominee, and they did not have the votes. Perhaps not surprisingly, Hatch once sang a different tune. In 1994, Hatch defended a Republicanled filibuster on a judicial nomination by declaring that the filibuster is one of the few tools the minority has to protect itself and those the minority represents. And Hatch himself voted with other Republicans to defeat the nomination of Henry Foster to be Surgeon General by voting to continue a filibuster against the nominee, even though Foster clearly had the support of a majority of the Senate. Fully Constitutional Given their past use of the filibuster (and other means to block votes) on judicial nominations, it is a remarkable display of hypocrisy for Republican leaders to now suggest that use of the filibuster to prevent final votes on judicial nominees is unconstitutional. How can it be constitutional for a committee chair to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senator to prevent a nominee from moving forward, but unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority? It is clear that the answer has nothing to do with the Constitution and everything to do with wielding power. 7 See PFAWF Edit Memo, The Fortas Filibuster: Hatch/GOP Judicial Strategy Relies on False History (July 29, 2003) illustrating that Fortas had majority support and was, therefore, filibustered by the minority that opposed him.

The primary legal theory being put forward by right-wing legal scholars and activists to support their claims rests on bad logic, bad law, and bad history. In fact, Article I, Section 5 of the Constitution clearly states that each House of Congress is authorized to make its own rules. In some areas, the framers of the Constitution did take some matters out of the hands of Congress by requiring, for example, two-thirds of the Senate to approve international treaties. Requiring a majority vote to approve matters is in essence a parliamentary floor, not a ceiling. Nowhere in the Constitution is there a requirement for a simple majority for votes on nominations. In fact, it was not until 1917 that there was any way other than unanimous consent to cut off debate on issues, including judicial nominations, and bring them to a vote. In that year the very first cloture rule was adopted requiring two thirds of the Senate present and voting to invoke cloture and force a vote on a measure. For the past 54 years, the Senate has required a super majority of the entire Senate (ranging from 3/5 to 2/3) to bring nominations or legislation to a vote. The Supreme Court has expressly upheld the principle of supermajorities in a case involving local voting rules requiring a majority of 60 percent to pass a measure. The Court s ruling stated: Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. Gordon v. Lance, 403 U.S. 1 at 6 (1971). In fact, because each state has two Senators regardless of population, filibustering Senators may well at times represent a majority of the population. III. Step Back from the Button A tactic truly without precedent While it is clear that the filibuster itself has ample precedent, it is equally clear that exercise of the nuclear option would constitute new and dangerous territory for the Senate. Proponents of the nuclear option have tried to argue that past actions by Senate majorities justify these extreme tactics. For example, Senator Arlen Specter, has suggested that four actions, taken respectively in 1987, 1980, 1979, and 1977 by the Senate could be viewed as support for the nuclear option. However, a careful review of the Senate s precedents reveals that the Senate has never acted by simple majority vote to force an end to a filibuster or a change to the Senate s rules of debate. In 1987, while the Senate did cut off a delaying tactic, it did not amend Senators right to debate. In fact, the ruling did not touch on Senators right to debate at all; rather it dealt with whether extended explanation in the midst of a roll call vote for a Senator s failure to vote was dilatory. Furthermore, this tactic, while technically permissible under Senate rules, was not expressly provided for and protected by the rules as is the filibuster. In 1980, then majority leader Robert C. Byrd asserted the right of the Senate to consider nominations out of the order listed in the Senate s calendar of business. However, adoption of this practice only affected the process for scheduling business in the Senate. It did nothing to restrict Senators right to debate and filibuster on a nomination. In 1979, the Senate interpreted its rule barring legislative amendments on an appropriations bill in a more restrictive way. However, unlike the nuclear option this was a case of first impression

before the Senate, the precedent set did not conflict with the text of the Senate rules, and it did not restrict the right to debate. Finally, in 1977, the Senate ruled that several tactics employed after cloture had been invoked were dilatory delaying tactics. However, these decisions by the Senate affected tactics only after a supermajority of the Senate voted (under the rules) to end a filibuster, none restricted the right of Senators to wage a filibuster against a nominee or legislation before cloture is adopted, and none conflicted with the text of the Senate rules. At best, these precedents stand for the proposition that the Senate has, at times, interpreted or reinterpreted its rules to expedite its business. However, it is also clear that none of them contemplate the dramatic shift in precedent and practice contemplated by the nuclear option. As Hatch points out in his National Review column, some Democrats have, at times, proposed changing the rules governing the filibuster. And the Senate has, on several occasions, amended the cloture rule. However, the key difference is that in each case, the proposals, whether adopted or not, involved amending the rules through the regular order (including requiring a super majority to end debate) not ramming through a change by majority vote. Finally, the nuclear option would set a dangerous new precedent which would start the Senate down the path of losing its unique place in the constitutional constellation as a check on the House and President. The Senate has never cut off debate through a back-door rule change like Senator Frist has now proposed. But if the rules for judicial nominations are changed, there is no reason to believe that a future Senate majority might not change the rules for legislation or other nominations as well. The Senate is a Continuing Body To explain away the violence that the nuclear option would do to the Senate s rules and traditions, Hatch and others have advanced a novel argument: if the Senate were to act before the 109th Congress has formally been organized, the formal process for amending the standing rules of the Senate will not apply because, under this theory, rules of the Senate would not carry over from the prior Congress. Frist cited this theory in floor remarks delivered at the seating of the new Congress on January 4, and even tried to extend this parliamentary state of nature by stating that he, personally, did not acquiesce to carrying over the Senate s rules from the 108 th Congress. However, this argument ignores the entire 216 year history and practices of the Senate as a continuing body whose rules, unlike those of the House, do carry over from Congress to Congress. In fact, the Senate has only readopted or re-codified its rules at the start of a new Congress seven times, 8 and has expressly rejected the Hatch-Frist logic each time it has been brought to a vote. 9 This practice reflects the fact that the entire Senate does not stand for election every two years as the House does and that Senators serve staggered 6 years terms. The tradition of the Senate as a continuing body was affirmed in a 1978 interview by the esteemed former Senate Parliamentarian 8 Floyd M. Riddick, Alan S. Fruman, Riddick s Senate Procedure, (1992) p. 1220 9 Id at 1220-1224.

Floyd Riddick, whose authoritative compilation of Senate precedents is still the reference in use today by the Senate. 10 It has also been confirmed on several occasions by the U.S. Supreme Court. 11 Finally, the Constitution grants to the entire House and Senate the power to set each body s own rules in Article I. As far as that process is concerned, the Majority Leader (a role found nowhere in the Constitution) is one Senator. His personal acquiescence or lack thereof is irrelevant to what rules bind the Senate. Republican power grab threatens to throw the Senate into chaos The Senate since its founding has been a body that depends on comity to operate effectively. If they decide to forego this tradition for narrow political expediency, Republicans cannot expect to enjoy its benefits. In the Senate, Democrats will be forced to employ new and further tactics to obstruct this radical agenda. Further, as Minority Leader Reid warned over the past months, use of the nuclear option itself will rightly spark a conflagration of protest by the Senate minority in the form of objection to routine business and to traditional means of expediting the Senate s work such as unanimous consent agreements. Much business in the Senate, on legislation and nominations alike will grind to a halt. By so doing, Senators currently in the minority would be acting to preserve the rights and interests of future Senate minorities regardless of which party may find itself in that position. Conclusion The nuclear option represents an unprecedented abuse of power by the majority that would override 200 years of Senate tradition in an effort to ensure the swift and unimpeded approval of extreme right judicial nominees who will undo Americans established rights and freedoms. If the Administration s previous nominations are a guide, these judicial nominees are most notable for their commitment to undermining the Voting Rights Act and other civil rights laws, gutting the Clean Water and Clean Air acts, overturning Roe v. Wade, and much more. Such a radical overhaul of the Senate s longstanding traditions of open debate, compromise, and negotiation would undermine our constitutional system of checks and balances and cannot be permitted. 10 Interview of Floyd Riddick, found at http://www.senate.gov/artandhistory/history/resources/pdf/riddick_interview_4.pdf. 11 See, e.g., Eastland v. U.S. Servicemen s Fund, 421 U.S. 491, 512 (1975); McGrain v. Daugherty, 273 U.S. 135, 181 (1927).