Sunday, January 22, 2006

The Judicial Filibuster and the Constitutional Option

Continued from the previous post

The filibusters of judicial nominations during the 108th Congress were unprecedented in Senate history. [This historical observation has been conceded by leading Senate Democrats. For example, the Democratic Senatorial Campaign Committee solicited campaign contributions in November 2003 with the claim that the filibusters were an ``unprecedented'' effort to ``save our courts.'' See Senator John Cornyn, Congressional Record, Nov. 12, 2003, S14601, S14605. No Senator has disputed that until Miguel Estrada asked the President to withdraw his nomination in September 2003, no circuit court nominee had ever been withdrawn or defeated for confirmation due to the refusal of a minority to permit an up-or-down vote on the Senate floor.] While cloture votes had been necessary for a few nominees in previous years, leaders from both parties consistently worked together to ensure that nominees who reached the Senate floor received up-or-down votes. The result of this bipartisan cooperation was that, until 2003, no judicial nominee with clear majority support had ever been defeated due to a refusal by a Senate minority to permit an up-or-down floor vote, i.e., a filibuster . [For a review of all past cloture votes on judicial nominations prior to the 108th Congress, see Senate Republican Policy Committee, ``Denying Mr. Estrada an Up-or-Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 2003). See also Cornyn, 27 Harv. J. L. Pub. Pol'y at 218-227.]