Kavanaugh’s team of clerks was quickly disabused of the notion that the confirmation process would be dignified. The special-interest opposition was intense, the press coverage was crazy, and many Democrats would not even meet with him.
Laurence Tribe’s God Save This Honorable Court had helped to change the philosophy of confirmations in the 1980s. In the early years of the George W. Bush administration there was a major change in their procedure, and Tribe had a role in that as well.
It had to do with the filibuster, which is what happens when a vote to end debate, called cloture, does not pass. The Senate cannot hold a final vote on a nomination without either unanimous consent or a vote for cloture. Under Senate rules, a senator does not actually have to keep talking, like Jimmy Stewart in Mr. Smith Goes to Washington, to keep a filibuster going. It’s enough simply not to pass a cloture vote. Because sixty votes were needed for cloture, the minority party could block a majority-supported action without resorting to reading the phone book.
The filibuster had been part of the Senate’s legislative process since the early nineteenth century. But the cloture rule as a means to end debate came about only in 1917 and did not apply to nominations until 1949; in theory, then, debate on a nomination could have gone on forever. The Senate never took a cloture vote on a nominee until 1968, and no majority-supported nomination was defeated with a filibuster until 2003. Even Clarence Thomas, confirmed with only fifty-two votes and without support of the Senate Judiciary Committee, was not subjected to the sixty-vote threshold of a cloture vote. Filibustering judicial nominations simply wasn’t done.
After Bush’s election in 2000, the Senate Democratic leader, Tom Daschle, announced that his caucus would use “whatever means necessary” to defeat Bush’s nominations.45 When John Ashcroft, himself a former senator, was nominated to be attorney general, forty-two Democrats voted against him. Senator Chuck Schumer called it a “shot across the bow.”46 Daschle said he wanted to assemble enough votes to signal that a filibuster could have been waged, even though some who voted against Ashcroft nevertheless thought he deserved an up-or-down vote.
In April 2001, the Democrats held a retreat in Pennsylvania to discuss how to change the rules of the confirmation process to defeat Bush’s judicial nominations. Tribe spoke at the retreat, along with Professor Cass R. Sunstein of the University of Chicago Law School and Marcia D. Greenberger, the co-president of the National Women’s Law Center. They helped the Democrats come up with strategies for blocking qualified candidates who were not liberal, one of which was dramatically to change the use of the filibuster.47
The next month Bush made eleven nominations to appeals courts. They were never confirmed in that Congress. After the Democrats lost seats in the 2002 elections, they began forcing cloture votes, a tactic that some members were reluctant to pursue. Ten of Bush’s nominees endured twenty-one filibusters in that Congress.
Miguel Estrada, nominated to the D.C. Circuit, was the most prominent victim of the new strategy. A leaked Democratic Senate strategy memorandum revealed that liberal groups had met with Senate Democrats in 2001 and identified Estrada as “especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”48 Democrats could not allow Republicans to put the first Hispanic on the Supreme Court, so they filibustered Estrada seven times, eventually forcing him to withdraw.
Frustrated with the weaponization of Senate procedure, Republicans began talking about getting rid of the filibuster. But senatorial inertia took over when a bipartisan “Gang of Fourteen” senators brokered a deal to keep the filibuster option.49
They agreed to finally hold a vote on three of the filibustered judges—Janice Rogers Brown (D.C. Circuit), William Pryor (Eleventh Circuit), and Priscilla Owen (Fifth Circuit)—saving the filibuster for the remainder of that Congress for undefined “extraordinary circumstances.”50
The nomination of Samuel Alito to the Supreme Court in November 2005 tested the strength of the Gang of Fourteen alliance. He was widely considered to be more reliably conservative than the unpredictable Sandra Day O’Connor, whom he would replace, and liberals were worried. The New York Times ran a story questioning whether Alito’s father really was an immigrant from Italy, and genealogists were hired to investigate the conspiracy theory. (The Italian government eventually presented Alito with a copy of his father’s birth certificate.) His nomination sparked a filibuster attempt by Democrats worried that the Court would shift to the right. Although twenty-five senators, including Joe Biden, Barack Obama, Hillary Clinton, and Ted Kennedy, voted against cloture, the Gang of Fourteen held firm in opposing the filibuster. While Alito was eventually confirmed by a vote of fifty-eight to forty-two, fourteen of his opponents nevertheless voted to let the nomination proceed to a floor vote.
A second nomination that tested the Gang of Fourteen’s compromise was that of Brett Kavanaugh, President Bush’s staff secretary, first nominated to the D.C. Circuit in July 2003. Democrats, incensed that a former Whitewater prosecutor and a close ally of a president they considered illegitimate might sit on the second-most important court in the land, stalled his nomination. After Bush re-nominated him in 2005, he submitted to a second hearing before the Senate Judiciary Committee, and the Gang of Fourteen met to discuss the nomination. Senator Lindsey Graham reported that they couldn’t find “extraordinary circumstances” to oppose him. All but two of the Gang of Fourteen voted for cloture, and Kavanaugh was confirmed by a margin of fifty-seven to thirty-six.
At the beginning of the 113th Congress in 2013, Democrats were eager to fill a number of vacancies on the D.C. Circuit. Republicans negotiated a temporary deal reducing the delays on votes for district court and sub-cabinet positions, and Senator Harry Reid, the majority leader, took full advantage of it, confirming forty-three judges and twenty-seven executive nominees. A few months later, however, to push through Obama’s appointments to the D.C. Circuit, the Democratic majority abolished the filibuster altogether for nominations below the Supreme Court level. Pro-abortion activists were afraid that abolishing the filibuster for Supreme Court nominations would come back to haunt them under the next Republican president, so it was left in place.
More importantly, they changed the rules with a bare majority of Senate votes rather than the usual two-thirds majority—the so-called “nuclear option.” Reid had maligned this method of changing the rules when Republicans were considering it during the Bush administration. The Gang of Fourteen had worried about opening the floodgates to rule changes with only fifty-one votes, and the Republicans had refrained.
After Reid and the Democrats exercised the “nuclear option,” Senator McConnell, the minority leader, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”51 Only a year later, Republicans took back the Senate. Some members wanted to bring back the filibuster, but McConnell persuaded them not to. Limiting their own majority’s influence in that way, given the certainty that the Democrats would eliminate the filibuster again when they regained a majority, would be political malpractice. And those who were squeamish about eliminating the filibuster had to acknowledge that the effect of the rule change had been to return the Senate to the way it had operated prior to 2003, when filibusters were generally regarded as off the table for judicial nominations.