The Democrats' filibuster

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Two days after he won re-election by more than three million votes and helped to increase the Republican Senate majority from 51 members to 55, President Bush told reporters that he had earned "political capital" in the campaign, adding: "[N]ow I intend to spend it." It should hardly be surprising, therefore, that one of his first actions following his solid victory will be the renomination of 20 federal judges whom the Senate failed to confirm during the president's first term.

It is worth recalling that Mr. Bush campaigned throughout 2004 against the Democrats' obstructionism in the Senate, which was most clearly epitomized by the unprecedented filibuster campaign the minority party waged against 10 judicial nominees to the nation's circuit courts of appeal. Indeed, the president's coattails played an indispensable role in ousting Senate Minority Leader Tom Daschle of South Dakota, the leader of the filibuster campaign whose judicial obstructionism played a major role in his electoral defeat.

Arguing that "the Senate has a constitutional obligation to vote up or down on a president's judicial nominees," the White House announced last week that "the president intends to nominate" 20 individuals "who did not receive up or down votes in the president's first term." Sixteen of those individuals were nominated more than a year ago, including five appellate-court nominees who were first nominated in 2001.

During the 108th Congress, in a campaign of unprecedented scope and breadth, Democratic senators successfully voted 20 times to deny cloture on judicial nominees. Invoking cloture would have ended the Democratic filibusters being waged to prevent an up or down vote for the 10 nominees to the appellate courts.

Indicative of their viciousness, consider the campaign Democrats waged against Miguel Estrada, whom President Bush nominated in 2001 and 2003 to the U.S. Court of Appeals for the D.C. Circuit, widely considered to be the most powerful federal court below the U.S. Supreme Court. Mr. Estrada arrived in the United States from Honduras at the age of 17; taught himself English; graduated Phi Beta Kappa from Columbia; and worked as an editor of the Harvard Law Review before graduating magna cum laude; and clerked for Supreme Court Justice Anthony Kennedy. Mr. Estrada later argued 15 cases (and won 10) before the U.S. Supreme Court. Nevertheless, Democrats rallied on seven occasions to deny him an up or down vote. He clearly would have won a confirmation vote, which would have made him the first Hispanic ever to serve on the D.C. circuit court.

A review of Senate history illustrates just how unprecedented the Democrats' filibustering campaign against judicial appellate nominees has been. The Senate established cloture, or the right to end debate, in 1917 by passing Rule 22. Under current Senate rules, 60 votes (not 60 percent of those voting) are needed to invoke cloture and end debate in order for an up or down vote to be taken on a bill that is subject to filibuster or on a nominee. According to a Congressional Research Service report, "Cloture Attempts on Nominations," which was updated Dec. 11, 2002: "Until 1949, cloture could not be invoked on nominations. From 1949 through 2002, cloture was sought on 35 nominations, and invoked on 21. Only three of the 35 nominees were not confirmed."

From 1949 through 2000, cloture was sought on only 13 judicial nominations, including twice for William Rehnquist, whose nominations as both associate justice and chief justice of the Supreme Court were filibustered. In 12 of those 13 instances, the judicial nominee was eventually confirmed. Only Abe Fortas, whom President Johnson sought in 1968 to elevate from associate to chief justice of the Supreme Court, failed to be confirmed.

Thus, cloture was sought on only 13 judicial nominees during the 51-year period from 1949 through 2000. During President Bush's first term, however, cloture has been sought on 14 judicial nominations. In 2002, cloture motions were filed for four circuit-court nominees, all of whom were eventually confirmed. During 2003 and 2004, however, cloture motions have been sought for 10 circuit-court nominations; and Democrats have managed to deny it for each nominee, depriving all of them of an up or down vote.

Democrats have successfully filibustered 10 of the 45 circuit court nominations by President Bush that have made it to the Senate floor. That's more than 20 percent. It is a campaign that has been as unprecedented as it has been outrageous.