Efforts to Circumvent Senate Rules to End Judicial Nominee Filibusters

History of efforts by the Republican Senate leadership to end judicial filibusters by circumventing Senate rules

Senate compromise preserves filibuster

In a victory for the independence of our federal courts and the preservation of environmental protections, a bipartisan coalition of 14 Senators agreed on May 23, 2005 not to vote during this Congress to change Senate rules to eliminate the right to filibuster controversial judicial nominees. In addition, Senate Minority Leader Harry Reid (D-NV) announced that Senate Democrats will continue to block anti-environmental nominee William Myers, whose hostility toward environmental protections prompted record opposition from groups around the country.

Read the compromise agreement here 

However, the agreement to abide by Senate rules and leave the filibuster rules intact comes at a high price. Under the agreement, Senate Democrats would not filibuster right-wing activist nominees William Pryor, Priscilla Owen, and Janice Rogers Brown. (Read our complete press release)

Read a note from Marty Hayden, Vice President of Policy and Legislation for Earthjustice, on what happened and what it means.

Efforts to Circumvent Senate Rules to End Judicial Nominee Filibusters:

The Senate Republican leadership was threatening to circumvent long-standing Senate rules in order to force simple-majority votes on controversial judicial nominees, even though the Senate has confirmed over 200 of President Bush's nominees to appeals courts, district courts and the Court of Federal Claims, while blocking only ten. These proposals would have avoided formally changing the Senate rules on filibusters by "re-interpreting" them. Even proponents recognized the extreme nature of this radical proposal--referring to it as the "nuclear option," because resorting to it would have "blown up" the Senate's ability to function on a wide range of issues.

The following resources discuss the proposal to end the judicial filibuster:

• Commentary (including almost 600 Editorials from 47 States and the District of Columbia) on the importance of maintaining senate rules that permit filibusters of nominees to lifetime judgeships
• Letter from 17 national environmental and Native American groups opposing the "nuclear option" (4/28/05)
• Conservative and Republican Opposition to the Nuclear Option (excerpts) (Word document)
• Listen to excerpts (.mp3) of an interview with Earthjustice Senior Legislative Counsel Glenn Sugameli on "The Jay Marvin Show," AM 760, Boulder, Colorado
  • On why blocking certain controversial nominees is important
  • Discussion of how these particular nominees are really activist judges; we want fair and independent judges
  • Discussion of what a filibuster is and an explanation of how Senate Republican Senate leaders want to break the rules to force through the most extreme ideologues onto the federal bench
  • Discussion of how if the filibuster is lost, we will have only 1-party government; this is the first step towards eliminating the filibuster on other things, such as legislation, as well.
• Op-ed by former Senators Jim McClure (R-ID) and Malcolm Wallop (R-WY) in the Wall Street Journal (3/15/2005)
• American Enterprise Institute's Norman Ornstein's analysis of how the nuclear option would ignore and break clear Senate rules and precedents (5/4/2005)
• Former Senators Alan Simpson (R-WY) and John Breaux (D-LA) talk to WBUR (NPR) radio host Dick Gordon about the nuclear option (transcript, 5/5/2005)
• Letters to the Senate supporting the filibuster from:
  • The Interfaith Alliance (April 7, 2005)
  • The International Brotherhood of Electrical Workers (April 6, 2005)
• Senators' statements supporting the right to filibuster judicial nominees:
  • Senator Harry Reid (D-NV):
    • Floor statement, 4/26/05
    • Remarks on the Steps of the Supreme Court, 4/6/05
    • Welcoming President Bush's Support of Checks and Balances, 4/8/05
    • Democratic Radio Address, 4/9/05
  • Senator Patrick Leahy (D-VT):
    • Statement on the filibuster, 4/27/05
    • Op-Ed in The Hill, 1/26/2005
    • Statement, 5/6/2003
  • Letter from Senators Reid & Leahy, urging President Bush to oppose the "nuclear option," 4/11/05 (full text)
  • Senator Dick Durbin (D-IL) on the Filibuster, April 26, 2005
  • Senator Barack Obama (D-IL) floor statement, April 13, 2005 (full text)
  • Senator Robert C. Byrd's (D-WV) floor statements against the "nuclear option": March 1, 2005, and March 10, 2005
  • Senator Edward M. Kennedy (D-MA), June 5, 2003 (full text)
  • Senator Christopher Dodd (D-CT), June 5, 2003 (full text)
  • Senator Russ Feingold (D-WI), May 6, 2003 (full text)
  • Excerpts from Senators' statements:
  • Senator Richard Durbin (2005)
  • Senator Ken Salazar (2004)
  • Senator Howard Baker (1968)
  • Senator Sam Ervin (1968)
• Testimony of Prof. Michael J. Gerhardt, Arthur B. Hanson Professor of Law, William & Mary Law School (full text)
• Testimony of Marcia Greenberger, Co-President, National Women's Law Center (full text)
• Letter from Abner Mikva, former White House Counsel and D.C. Circuit Judge (5/3/03) (full text)
• Letter from Robert A. Caro, who received his second Pulitzer Prize for "Master of the Senate" (6/3/03) (full text)
• Letter from 64 Law Professors on the constitutionality of filibusters against judicial nominees (5/16/03) (full text)

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Filibuster Ban Test Site by: RJ Matson ©Roll Call, March 2, 2005. Reprinted with permission.

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