Democrats in Senate Stall Judicial Nominations

By Carol Tobias, NRL Political Director, and
Douglas Johnson, NRLC Legislative Director

WASHINGTON (November 8, 2003) - - The Democratic minority in the U.S. Senate is preventing up-and-down votes on an increasing number of President Bush's nominees to federal courts of appeal who will not commit to support abortion. The courts of appeal are just one level down from the U.S. Supreme Court.

To date, four nominees have been denied up-and-down votes by filibusters.

One of these nominees, Miguel Estrada, the first Hispanic nominated for a seat on the prestigious U.S. Court of Appeals for the District of Columbia, withdrew his name from further consideration on September 4. Other judicial nominees are being threatened with such filibusters or obstructed by other methods.

Under the Constitution, only a majority vote is required for the Senate to confirm a presidential nominee. However, under Senate rules, unlimited debate is permitted on most issues, unless the Senate votes to "invoke cloture" and thereby end the debate. Cloture requires the votes of 60 of the 100 senators.

This year, the Senate has conducted 11 cloture votes on disputed judicial nominations. All 51 Republican senators have supported ending each filibuster, but no more than four Democratic senators have voted for cloture on any disputed nomination.

Forty-four Democratic senators have supported continuing the filibusters on each and every disputed nominee. Therefore, none of the filibusters have been broken.

The four nominees who have been denied up-and-down confirmation votes by these filibusters are Miguel Estrada; Texas Supreme Court Justice Priscilla Owen and U.S. District Judge Charles Pickering, both nominated to the U.S. Court of Appeals for the Fifth Circuit; and Alabama Attorney General Bill Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit.

Other nominees are being threatened with filibusters or are being blocked in other ways, including California Supreme Court Justice Janice Rogers Brown and state trial court judge Carolyn Kuhl of California, both nominated to the U.S. Court of Appeals for the Ninth Circuit; Claude Allen of Virginia, a senior Bush Administration official

nominated to the U.S. Court of Appeals for the Fourth Circuit; and Leon Holmes, a highly regarded attorney, nominated to a federal district court in Arkansas.


Pro-abortion Groups Target Nominees

All of the disputed nominees have received ratings of "well qualified" or "qualified" from the American Bar Association panel that offers such ratings. During the Clinton Administration, Democratic senators regarded this panel's ratings as highly credible.

However nominees have been targeted by pro-abortion organizations such as NARAL, the Planned Parenthood Federation of America, and People for the American Way, as well as other advocacy groups, and then subjected to filibusters and other obstruction tactics, despite their sterling legal credentials.

A NARAL "report," dated October 20, 2003, stated, "None of Bush's 46 Court of Appeals nominees has endorsed the legal foundation of Roe v. Wade, and at least 14 have clear anti-choice records."

These groups and a host of allies furiously grind out e-mail alerts and initiate grassroots and media efforts to motivate the bloc of Democratic senators to prevent up-and-down votes on one nominee after another.

While various "issues" have been raised on each nominee, in each case a major motivating factor in the attacks has been some past ruling, action, or association by a nominee that is displeasing to the pro-abortion lobby.

For example, Priscilla Owen was targeted for writing opinions that interpreted state law to generally protect the right of parents to be involved in the abortion decisions of their minor daughters.

Janice Rogers Brown has served on the California Supreme Court since 1996, where she is the first African-American justice. The voters retained her with 76% of the vote. Yet the National Organization for Women wrote of Brown that "her court decisions reflect her desire to limit abortion rights" because she ruled in favor of a parental notification law in California.

Although the nominees consistently pledge to abide by Supreme Court precedents, senators allied with the pro-abortion groups block them anyway, because the pro-abortion groups basically want guarantees that each nominee will vote their way on any abortion-related issue that may come up in the future.

Each anti-nominee campaign starts with personal attacks. Invariably, nominees are falsely labeled "extremists" or "out of the mainstream." More recently, this tactic has been supplemented by the charge that the nominee has a "deeply held personal belief," which pro-abortionists insist means the nominee can be neither fair nor impartial.

California Democratic senators Dianne Feinstein and Barbara Boxer wrote to Judiciary Committee Chairman Orrin Hatch (R-Ut.), urging that no action be taken on Carolyn Kuhl, the state trial court judge nominated for the Ninth Circuit Court of Appeals. They wrote, "Although she has been a local judge in Los Angeles for a number of years, her positions on reproductive rights . . . and other key issues of our day raised serious concerns among many."

Brown is being referred to by some Washington-based groups opposing her as a "female Clarence Thomas," which they do not intend as a compliment.

The "ideology" of President Bush's nominees has also come under attack from some of the candidates for the 2004 Democratic presidential nomination.

For instance, at a NARAL dinner last January, Sen. Joseph Lieberman (CT.) said, "the right to choose is in serious danger from the courts because this president is imposing a rigid litmus test on judicial nominations." Of course, the only "litmus test" being employed is by pro-abortion Democrats insisting that nominees promise to always rule for the pro-abortion side, even on issues such as parental notification.

Sen. John Kerry (Mass.) stated in June that he was "prepared to filibuster, if necessary, any Supreme Court nominee who would turn back the clock on a woman's right to choose or the constitutional right to privacy."


Democrats Continue to Filibuster

Senate Majority Leader Bill Frist (TN.) has pushed aggressively to break the filibusters, but so far all but a few Democratic senators have hung together.

Among Democrats, Senator Zell Miller (GA.) has voted to end all of the filibusters. Senator Ben Nelson (NE.) missed a cloture vote on Pickering but supported ending the other filibusters. Senator John Breaux (LA.) voted to end the filibusters on Estrada and Pickering only, and Senator Bill Nelson (FL) voted to end the filibuster against Estrada only. Senator Jim Jeffords, an independent who caucuses with the Democrats, voted to end the filibuster on Pickering only.

None of the other Democratic senators have voted to end any of the filibusters.

Not Like the Movies

Contrary to portrayals of filibusters in Hollywood movies and TV productions, this type of filibuster cannot be defeated by forcing the Senate into continuous or all-night sessions.

At any time, any single senator can halt the Senate's business by demanding the live presence of a quorum - - 51 senators - - on the Senate floor. If all 51 Republican senators assemble on the floor, debate will resume - - but this does not end the filibuster, which requires 60 votes. As soon as a Republican senator or two leave the chamber, a Democratic senator can once again suspend all business by objecting to the lack of a quorum.

This process is hard on the majority, which must keep at least 50 senators present in order to prevent another "time out," but easy for the minority, which can assign just one senator at a time to the floor, in endless rotation. This process can be continued indefinitely, and it will never produce an up-or-down vote on a nomination.