Gang of 14
Encyclopedia
The Gang of 14 was a term coined to describe the bipartisan group of Senators
in the 109th United States Congress
who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option
over an organized use of the filibuster by Senate Democrats.
. In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats. The ten Bush appellate nominees who were filibustered were Miguel Estrada
, Priscilla Owen
, Charles W. Pickering
, Carolyn Kuhl
, David W. McKeague, Henry Saad
, Richard Allen Griffin
, William H. Pryor, William Gerry Myers III and Janice Rogers Brown
.
As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott
termed the "nuclear option" and which Republicans tended to call the "constitutional option." This change in rules would eliminate the use of the filibuster
to prevent judicial confirmation votes.
The theory behind the "nuclear option" was that the Senate had the right to determine its own rules and that those rules could be determined on the basis of a majority vote. Democrats objected, arguing that the Senate's rules could not be changed without a 2/3 vote as stated in the Senate Rules themselves. Republicans countered that the Senate's power to govern itself was founded in the Constitution itself and that internal Senate Rules could not deny that power.
Republicans had only a two-vote majority in the 108th Congress, so they were in a weak position to implement this procedural maneuver. Things changed in 2005 due to the 2004 elections. With President Bush winning re-election and the Republicans picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation.
Because of the political split in the Senate at the time (55 Republicans, 44 Democrats and 1 Independent
), if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the "nuclear option" and force cloture
on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen
– the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist
and Minority Leader Harry Reid
having evidently given up all pretense of finding a compromise (each have been accused of having desired the showdown for their own political ends), some members in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.
The Gang of 14 signed an agreement, pertaining to the 109th Congress only, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances," as defined by each individual senator), and in turn the seven Senate Republicans would break with Bill Frist
and the Republican leadership on voting for the "nuclear option." As the Republicans held a five-vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented the Republicans from winning a simple majority to uphold a change in the interpretation of Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships, the group members were hailed as moderates who put aside severe partisanship
to do what was best for the Senate. At the same time, some of the Republican members of the Gang of 14 faced political firestorms from the conservative base due to their participation in this agreement.
Three of the filibustered nominees (Estrada, Pickering and Kuhl) having withdrawn, in the 109th Congress, five of the seven filibustered nominees (Owen, McKeague, Griffin, Pryor and Brown) were allowed to be confirmed as a result of the deal brokered by the Gang.
The Gang became active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Court
Justice Sandra Day O'Connor
. On November 3, 2005, the group met to discuss the nomination of Samuel Alito
to the high court, but came to no conclusions, noting that the hearing process had only just begun in his case. On January 30, 2006, the members of the group unanimously supported a cloture
vote in the Alito nomination, providing more than enough votes to prevent a filibuster.
was confirmed 55-43, Janice Rogers Brown
was confirmed 56-43, and William Pryor
was confirmed 53-45. The two nominees who were not specifically guaranteed cloture in the agreement, William Myers and Henry Saad
, both later withdrew. Myers of Idaho was opposed by the Democratic leadership because of the perceived anti-environmental bias of his work as the solicitor general of the United States Department of the Interior
and as the deputy general counsel of the United States Department of Energy
. Saad of Michigan, on the other hand, was opposed by his two Democratic homestate senators, Carl Levin
and Debbie Stabenow
, because he had angered Stabenow in September 2003 by sending out an e-mail critical of her participation in his original filibuster. In the e-mail, Saad wrote to a supporter about Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." Stabenow became aware of the e-mail when Saad accidentally sent it not only to the supporter but also to Stabenow's office. .
The immediate and proximate political result of the agreement was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Three judicial nominees not explicitly mentioned in the original Gang deal were confirmed under its provisions: David W. McKeague, Richard Allen Griffin
and Thomas B. Griffith
.
Sen. Orrin Hatch
at the time characterized the deal as "a truce, not a ceasefire", and the potential for a resumption of hostilities was obvious to everyone. The compromise purported to rule out Democratic filibusters in "all but extraordinary circumstances", yet the day after the compromise was announced, Democratic Minority Leader
Harry Reid
provocatively announced in a speech on the Senate floor that in his view, the Democrats were already using the filibuster in only "extraordinary circumstances". Equally, a provocative attempt by Sen. Carl Levin
to shut the door on the nuclear option by obtaining a ruling from the chair – at that moment, Senator John E. Sununu
– that the filibuster had been yielded as constitutional by the compromise, failed; the Republican leadership, thus, retained the nuclear option. Consequently, moderates on both sides were able to claim victory, and partisans on both sides were able to avoid defeat.
The compromise was further tested by the confirmation battle over the nomination of Samuel Alito
to the Supreme Court to fill the vacancy left by Sandra Day O'Connor
's retirement. A number of Democratic senators attempted a filibuster; however, the entire Gang of 14 voted for cloture, which passed by 72 to 24 (with 60 "aye" votes needed to end the filibuster). Several members of the Gang of 14 then voted against confirming Alito, including Republican Lincoln Chafee.
and White House aide Brett Kavanaugh
. Boyle had been first nominated to the Fourth Circuit
in 2001 and Kavanaugh to the D.C. Circuit
in 2003. Senate Democratic leader Harry Reid
immediately expressed concern over both nominees, threatening to possibly filibuster each one. On May 3, 2006, the seven Democratic members of the Gang of 14 wrote a letter to the Senate Judiciary Committee requesting a second hearing for Kavanaugh. That request was granted the next day. On Tuesday, May 9, Kavanaugh appeared before the Senate Judiciary Committee for his second hearing. Later that same day, the Gang of 14 met to discuss his nomination as well as the nomination of Boyle which had become embroiled in a debate concerning Boyle's failure to recuse himself in several cases. After the meeting, South Carolina senator Lindsay Graham
declared that he saw no "extraordinary circumstances" concerning Kavanaugh's nomination. However, several Republican members of the "Gang" refused to address the status of Boyle. The Democratic members said they would request a second hearing for Boyle like they had done earlier for Kavanaugh. On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 Two weeks later on Thursday, May 25, cloture was invoked on Kavanaugh by a vote of 67-30 with all but two members of the Gang of 14 voting to end debate. Senator Inouye
voted against invoking cloture, and Senator Salazar
did not vote. The next day, Kavanaugh was confirmed to the D.C. Circuit
by a vote of 57-36. All of the Republicans and three of the Democrats (Byrd
, Landrieu
and Nelson
) in the Gang voted for confirmation.
Before the Boyle nomination could be addressed, a controversy arose about the nomination of William Haynes
, the general counsel of the Department of Defense
, to be an appellate judge on the Fourth Circuit
. When it was revealed that Republican senator Graham
might be holding up Haynes's nomination in committee due to concerns about Haynes' participation in the formulation and implementation of certain torture guidelines suggested by the Bybee memo, there was a conservative uproar. Conservative leaders began applying pressure on Graham in order to get Haynes confirmed. Graham responded to his critics with a letter explaining his position on the nomination. Eventually, Haynes was granted a second hearing like Kavanaugh had been before him. Two days after the July 11 hearing, the Gang met to discuss Haynes' nomination. Their initial response did not seem positive.
Before any further action could be taken on Haynes, however, his nomination (as well as those of four other controversial appellate nominees including Boyle and previously filibustered nominee William Myers) was returned to the White House according to Senate rules on August 3, 2006 in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers and Haynes were renominated, again no action was taken on them in the Senate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29.
, however, saw Republican members Lincoln Chafee
(R-Rhode Island
) and Mike DeWine
(R-Ohio
) replaced by Democrats Sheldon Whitehouse
and Sherrod Brown
, respectively. Tolerance for Bush's judicial nominees was among the criticism the Democratic winners leveled against their incumbent Republican opponents, and the elections as a whole handed control of the Senate to the Democrats.
After the November 7, 2006 election in which Democrats picked up six additional Senate seats in the 110th Congress, President Bush again renominated the six candidates whose nominations had been sent back to him in September. The Judiciary Committee chairman, Senator Specter, however, said that he would not process these nominees during the lame duck session of the 109th Congress.
, Robert J. Conrad
and Steve A. Matthews
were blocked in committee and never given a hearing. If a Supreme Court justice had chosen to retire during the 110th Congress, it would have been just as easy for the Democrats to have blocked his replacement in committee. Even if the replacement nominee had made it out of committee, then the Democrats still could have defeated him with a party-line vote. As it developed, no Supreme Court justice retired or died during the 110th Congress.
On November 17, 2009, two members of the Gang of 14 - Senators McCain (R-AZ) and Graham (R-SC) - voted against the motion to invoke cloture on the nomination of David Hamilton
, President Obama's pick for the a vacant seat on the Seventh Circuit. At the time, neither Senator linked his vote to the "extraordinary circumstances" standard announced in the Gang's original agreement. Senator Graham indicated that he thought that Judge Hamilton's views were "so far removed from the mainstream" that a vote against cloture was warranted.
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
in the 109th United States Congress
109th United States Congress
The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members...
who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option
Nuclear option
In U.S. politics, the "nuclear option" allows the United States Senate to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures...
over an organized use of the filibuster by Senate Democrats.
Background
The Democrats had been using the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
. In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats. The ten Bush appellate nominees who were filibustered were Miguel Estrada
Miguel Estrada
Miguel Angel Estrada Castañeda is an attorney who became embroiled in controversy following his 2001 nomination by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit...
, Priscilla Owen
Priscilla Owen
Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...
, Charles W. Pickering
Charles W. Pickering
Charles Willis Pickering, Sr. is a retired federal judge who served on the United States Court of Appeals for the Fifth Circuit.- Background :...
, Carolyn Kuhl
Carolyn Kuhl
Carolyn Barbara Kuhl is a judge on the Superior Court of California for the County of Los Angeles and a former nominee to the United States Court of Appeals for the Ninth Circuit. She was born in St. Louis, Missouri.-Background:...
, David W. McKeague, Henry Saad
Henry Saad
Henry William Saad is a judge on the Michigan Court of Appeals and a former nominee to the United States Court of Appeals for the Sixth Circuit. He was born in Detroit, Michigan.-Background:...
, Richard Allen Griffin
Richard Allen Griffin
Richard Allen Griffin is a federal judge on the United States Court of Appeals for the Sixth Circuit. Previously, he was a judge on the Michigan Court of Appeals.- Background :...
, William H. Pryor, William Gerry Myers III and Janice Rogers Brown
Janice Rogers Brown
Janice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...
.
As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott
Trent Lott
Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....
termed the "nuclear option" and which Republicans tended to call the "constitutional option." This change in rules would eliminate the use of the filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
to prevent judicial confirmation votes.
The theory behind the "nuclear option" was that the Senate had the right to determine its own rules and that those rules could be determined on the basis of a majority vote. Democrats objected, arguing that the Senate's rules could not be changed without a 2/3 vote as stated in the Senate Rules themselves. Republicans countered that the Senate's power to govern itself was founded in the Constitution itself and that internal Senate Rules could not deny that power.
Republicans had only a two-vote majority in the 108th Congress, so they were in a weak position to implement this procedural maneuver. Things changed in 2005 due to the 2004 elections. With President Bush winning re-election and the Republicans picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation.
Because of the political split in the Senate at the time (55 Republicans, 44 Democrats and 1 Independent
Jim Jeffords
James Merrill "Jim" Jeffords is a former U.S. Senator from Vermont. He served as a Republican until 2001, when he left the party to become an independent. He retired from the Senate in 2006.-Background:...
), if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the "nuclear option" and force cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen
Priscilla Owen
Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...
– the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist
Bill Frist
William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...
and Minority Leader Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
having evidently given up all pretense of finding a compromise (each have been accused of having desired the showdown for their own political ends), some members in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.
The Gang of 14 signed an agreement, pertaining to the 109th Congress only, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances," as defined by each individual senator), and in turn the seven Senate Republicans would break with Bill Frist
Bill Frist
William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...
and the Republican leadership on voting for the "nuclear option." As the Republicans held a five-vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented the Republicans from winning a simple majority to uphold a change in the interpretation of Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships, the group members were hailed as moderates who put aside severe partisanship
Partisan (political)
In politics, a partisan is a committed member of a political party. In multi-party systems, the term is widely understood to carry a negative connotation - referring to those who wholly support their party's policies and are perhaps even reluctant to acknowledge correctness on the part of their...
to do what was best for the Senate. At the same time, some of the Republican members of the Gang of 14 faced political firestorms from the conservative base due to their participation in this agreement.
Three of the filibustered nominees (Estrada, Pickering and Kuhl) having withdrawn, in the 109th Congress, five of the seven filibustered nominees (Owen, McKeague, Griffin, Pryor and Brown) were allowed to be confirmed as a result of the deal brokered by the Gang.
The Gang became active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
. On November 3, 2005, the group met to discuss the nomination of Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
to the high court, but came to no conclusions, noting that the hearing process had only just begun in his case. On January 30, 2006, the members of the group unanimously supported a cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
vote in the Alito nomination, providing more than enough votes to prevent a filibuster.
Text of the Agreement
Initial Results of the Agreement
As a result of the agreement, Priscilla OwenPriscilla Owen
Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...
was confirmed 55-43, Janice Rogers Brown
Janice Rogers Brown
Janice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...
was confirmed 56-43, and William Pryor
William H. Pryor, Jr.
William Holcombe "Bill" Pryor, Jr. is a federal judge on the United States Court of Appeals for the Eleventh Circuit. Previously, he was the Attorney General of the State of Alabama from 1997 to 2004.-Background:...
was confirmed 53-45. The two nominees who were not specifically guaranteed cloture in the agreement, William Myers and Henry Saad
Henry Saad
Henry William Saad is a judge on the Michigan Court of Appeals and a former nominee to the United States Court of Appeals for the Sixth Circuit. He was born in Detroit, Michigan.-Background:...
, both later withdrew. Myers of Idaho was opposed by the Democratic leadership because of the perceived anti-environmental bias of his work as the solicitor general of the United States Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
and as the deputy general counsel of the United States Department of Energy
United States Department of Energy
The United States Department of Energy is a Cabinet-level department of the United States government concerned with the United States' policies regarding energy and safety in handling nuclear material...
. Saad of Michigan, on the other hand, was opposed by his two Democratic homestate senators, Carl Levin
Carl Levin
Carl Milton Levin is a Jewish-American United States Senator from Michigan, serving since 1979. He is the Chairman of the Senate Committee on Armed Services. He is a member of the Democratic Party....
and Debbie Stabenow
Debbie Stabenow
Deborah Ann Greer "Debbie" Stabenow is the junior United States Senator from Michigan and a member of the Democratic Party. Before her election to the U.S. Senate, she was a member of the United States House of Representatives, representing Michigan's 8th congressional district from 1997 to 2001...
, because he had angered Stabenow in September 2003 by sending out an e-mail critical of her participation in his original filibuster. In the e-mail, Saad wrote to a supporter about Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." Stabenow became aware of the e-mail when Saad accidentally sent it not only to the supporter but also to Stabenow's office. .
The immediate and proximate political result of the agreement was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Three judicial nominees not explicitly mentioned in the original Gang deal were confirmed under its provisions: David W. McKeague, Richard Allen Griffin
Richard Allen Griffin
Richard Allen Griffin is a federal judge on the United States Court of Appeals for the Sixth Circuit. Previously, he was a judge on the Michigan Court of Appeals.- Background :...
and Thomas B. Griffith
Thomas B. Griffith
Thomas Beall Griffith is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. Before his appointment to the bench he was Senate Legal Counsel, the chief legal officer of the United States Senate...
.
Sen. Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
at the time characterized the deal as "a truce, not a ceasefire", and the potential for a resumption of hostilities was obvious to everyone. The compromise purported to rule out Democratic filibusters in "all but extraordinary circumstances", yet the day after the compromise was announced, Democratic Minority Leader
Minority leader
In U.S. politics, the minority leader is the floor leader of the second largest caucus in a legislative body. Given the two-party nature of the U.S. system, the minority leader is almost inevitably either a Republican or a Democrat, with their counterpart being of the opposite party. The position...
Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
provocatively announced in a speech on the Senate floor that in his view, the Democrats were already using the filibuster in only "extraordinary circumstances". Equally, a provocative attempt by Sen. Carl Levin
Carl Levin
Carl Milton Levin is a Jewish-American United States Senator from Michigan, serving since 1979. He is the Chairman of the Senate Committee on Armed Services. He is a member of the Democratic Party....
to shut the door on the nuclear option by obtaining a ruling from the chair – at that moment, Senator John E. Sununu
John E. Sununu
John Edward Sununu is a former Republican United States Senator from New Hampshire, of Lebanese and Palestinian Christian ancestry. Sununu was the youngest member of the Senate for his entire six year term. He is the son of former New Hampshire Governor John H...
– that the filibuster had been yielded as constitutional by the compromise, failed; the Republican leadership, thus, retained the nuclear option. Consequently, moderates on both sides were able to claim victory, and partisans on both sides were able to avoid defeat.
The compromise was further tested by the confirmation battle over the nomination of Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
to the Supreme Court to fill the vacancy left by Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's retirement. A number of Democratic senators attempted a filibuster; however, the entire Gang of 14 voted for cloture, which passed by 72 to 24 (with 60 "aye" votes needed to end the filibuster). Several members of the Gang of 14 then voted against confirming Alito, including Republican Lincoln Chafee.
The Filibuster Revisited in the 109th Congress
In April 2006, Senate Republicans began pushing for the confirmation of two controversial conservative court of appeals nominees who had not been included in the Gang of 14 deal of 2005, district court judge Terrence BoyleTerrence Boyle
Terrence William Boyle is a judge on the United States District Court for the Eastern District of North Carolina. He was Chief Judge of that court from 1997-2004. From 1991 to 1993 and again from 2001 to 2007, he was a nominee to the United States Court of Appeals for the Fourth Circuit...
and White House aide Brett Kavanaugh
Brett Kavanaugh
Brett Michael Kavanaugh is a federal judge on the United States Court of Appeals for the D.C. Circuit. He formerly was Staff Secretary in the Executive Office of the President of the United States under President George W...
. Boyle had been first nominated to the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
in 2001 and Kavanaugh to the D.C. Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
in 2003. Senate Democratic leader Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
immediately expressed concern over both nominees, threatening to possibly filibuster each one. On May 3, 2006, the seven Democratic members of the Gang of 14 wrote a letter to the Senate Judiciary Committee requesting a second hearing for Kavanaugh. That request was granted the next day. On Tuesday, May 9, Kavanaugh appeared before the Senate Judiciary Committee for his second hearing. Later that same day, the Gang of 14 met to discuss his nomination as well as the nomination of Boyle which had become embroiled in a debate concerning Boyle's failure to recuse himself in several cases. After the meeting, South Carolina senator Lindsay Graham
Lindsay Graham
Lindsay Graham is a recording engineer and record producer living in Dallas, Texas. He owns and works from his studio, Junius Recording Co., in Old East Dallas.-Production work:...
declared that he saw no "extraordinary circumstances" concerning Kavanaugh's nomination. However, several Republican members of the "Gang" refused to address the status of Boyle. The Democratic members said they would request a second hearing for Boyle like they had done earlier for Kavanaugh. On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 Two weeks later on Thursday, May 25, cloture was invoked on Kavanaugh by a vote of 67-30 with all but two members of the Gang of 14 voting to end debate. Senator Inouye
Daniel Inouye
Daniel Ken "Dan" Inouye is the senior United States Senator from Hawaii, a member of the Democratic Party, and the President pro tempore of the United States Senate making him the highest-ranking Asian American politician in American history. Inouye is the chairman of the United States Senate...
voted against invoking cloture, and Senator Salazar
Ken Salazar
Kenneth Lee "Ken" Salazar is the current United States Secretary of the Interior, in the administration of President Barack Obama. A member of the Democratic Party, he previously served as a United States Senator from Colorado from 2005 to 2009. He and Mel Martinez were the first Hispanic U.S...
did not vote. The next day, Kavanaugh was confirmed to the D.C. Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
by a vote of 57-36. All of the Republicans and three of the Democrats (Byrd
Robert Byrd
Robert Carlyle Byrd was a United States Senator from West Virginia. A member of the Democratic Party, Byrd served as a U.S. Representative from 1953 until 1959 and as a U.S. Senator from 1959 to 2010...
, Landrieu
Mary Landrieu
Mary Loretta Landrieu is the senior United States Senator from the State of Louisiana and a member of the Democratic Party.Born in Arlington, Virginia, Landrieu was raised in New Orleans, Louisiana...
and Nelson
Ben Nelson
Earl Benjamin "Ben" Nelson is the senior U.S. Senator from Nebraska. He is a member of the Democratic Party and was elected to the U.S. Senate in 2000....
) in the Gang voted for confirmation.
Before the Boyle nomination could be addressed, a controversy arose about the nomination of William Haynes
William J. Haynes, II
William James "Jim" Haynes II is an American lawyer and former General Counsel of the Department of Defense during President George W. Bush's administration. Haynes resigned as General Counsel effective March 2008...
, the general counsel of the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
, to be an appellate judge on the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
. When it was revealed that Republican senator Graham
Lindsay Graham
Lindsay Graham is a recording engineer and record producer living in Dallas, Texas. He owns and works from his studio, Junius Recording Co., in Old East Dallas.-Production work:...
might be holding up Haynes's nomination in committee due to concerns about Haynes' participation in the formulation and implementation of certain torture guidelines suggested by the Bybee memo, there was a conservative uproar. Conservative leaders began applying pressure on Graham in order to get Haynes confirmed. Graham responded to his critics with a letter explaining his position on the nomination. Eventually, Haynes was granted a second hearing like Kavanaugh had been before him. Two days after the July 11 hearing, the Gang met to discuss Haynes' nomination. Their initial response did not seem positive.
Before any further action could be taken on Haynes, however, his nomination (as well as those of four other controversial appellate nominees including Boyle and previously filibustered nominee William Myers) was returned to the White House according to Senate rules on August 3, 2006 in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers and Haynes were renominated, again no action was taken on them in the Senate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29.
The Impact of the Gang on the 2006 Election
Although strongly criticized by both Democratic and Republican partisans at the time, the compromise was successful in precluding further judicial filibusters or the use of the nuclear option during the rest of the 109th Congress. As noted before, the Gang of 14 deal was instrumental in permitting Supreme Court nominee Samuel Alito an up-or-down vote, as his vote for confirmation (58 for to 42 against) would not have been adequate to overcome a party-line filibuster (i.e. did not equal or exceed 60 votes). The 2006 electionsUnited States Senate elections, 2006
Elections for the United States Senate were held on November 7, 2006, with 33 of the 100 seats in the United States Senate being contested. Senators are elected for six-year terms, with one third of the Senate seats up for a vote every two years. The term of office for those elected in 2006 runs...
, however, saw Republican members Lincoln Chafee
Lincoln Chafee
Lincoln Davenport Chafee is an American politician who has been the 74th Governor of Rhode Island since January 2011. Prior to his election as governor, Chafee served in the United States Senate as a Republican from 1999 until losing his Senate re-election bid in 2006 to Democrat Sheldon...
(R-Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
) and Mike DeWine
Mike DeWine
Richard Michael "Mike" DeWine is the Attorney General for the state of Ohio. He has held numerous offices on the state and federal level, including Ohio State Senator, four terms as a U.S. Congressman, Ohio Lt. Governor, and was a two-term U.S. Senator, serving from 1995 to 2007.- Biography :Born...
(R-Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
) replaced by Democrats Sheldon Whitehouse
Sheldon Whitehouse
Sheldon Whitehouse is the junior U.S. Senator from Rhode Island, serving since 2007. He is a member of the Democratic Party...
and Sherrod Brown
Sherrod Brown
Sherrod Campbell Brown is the senior United States Senator from Ohio and a member of the Democratic Party. Before his election to the U.S. Senate, he was a member of the United States House of Representatives, representing Ohio's 13th congressional district from 1993 to 2007...
, respectively. Tolerance for Bush's judicial nominees was among the criticism the Democratic winners leveled against their incumbent Republican opponents, and the elections as a whole handed control of the Senate to the Democrats.
After the November 7, 2006 election in which Democrats picked up six additional Senate seats in the 110th Congress, President Bush again renominated the six candidates whose nominations had been sent back to him in September. The Judiciary Committee chairman, Senator Specter, however, said that he would not process these nominees during the lame duck session of the 109th Congress.
Epilogue
In the 110th Congress, the Democrats possessed a 51-49 majority in the Senate. With the Democrats in control, the purpose of the Gang of 14 disappeared. Realizing that the Democrats no longer needed to resort to the filibuster to block judicial nominees, President Bush attempted to reconcile with the Senate Democrats by not renominating Boyle, Myers and Haynes in January 2007. As the new majority party, the Senate Democrats easily blocked several conservative appellate judicial nominees during the 110th Congress using traditional methods. Conservative appellate nominees like Peter KeislerPeter Keisler
Peter D. Keisler is an American lawyer whose 2006 nomination by President George W. Bush to the United States Court of Appeals for the D.C. Circuit became embroiled in partisan controversy...
, Robert J. Conrad
Robert J. Conrad
Robert James Conrad, Jr. is a federal judge on the United States District Court for the Western District of North Carolina and a former nominee to the United States Court of Appeals for the Fourth Circuit to take the place of the retired James Dickson Phillips, Jr...
and Steve A. Matthews
Steve A. Matthews
Steve A. Matthews is an American lawyer and unsuccessful nominee to the United States Court of Appeals for the Fourth Circuit.-Background:...
were blocked in committee and never given a hearing. If a Supreme Court justice had chosen to retire during the 110th Congress, it would have been just as easy for the Democrats to have blocked his replacement in committee. Even if the replacement nominee had made it out of committee, then the Democrats still could have defeated him with a party-line vote. As it developed, no Supreme Court justice retired or died during the 110th Congress.
On November 17, 2009, two members of the Gang of 14 - Senators McCain (R-AZ) and Graham (R-SC) - voted against the motion to invoke cloture on the nomination of David Hamilton
David Hamilton (judge)
David Frank Hamilton is a United States federal judge, currently serving on the United States Court of Appeals for the Seventh Circuit. He previously was the Chief Judge of the United States District Court for the Southern District of Indiana. On March 17, 2009, President Barack Obama nominated...
, President Obama's pick for the a vacant seat on the Seventh Circuit. At the time, neither Senator linked his vote to the "extraordinary circumstances" standard announced in the Gang's original agreement. Senator Graham indicated that he thought that Judge Hamilton's views were "so far removed from the mainstream" that a vote against cloture was warranted.
See also
- United States federal judgeUnited States federal judgeIn the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....
- Federal judicial appointment historyFederal judicial appointment historyThe appointment of federal judges has become viewed as a political process in the last several decades. This is especially true of U.S. Supreme Court and court of appeals appointments...
- filibuster
- cloture
- nuclear optionNuclear optionIn U.S. politics, the "nuclear option" allows the United States Senate to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures...
- George W. Bush judicial appointment controversiesGeorge W. Bush judicial appointment controversiesDuring President George W. Bush's two term tenure in office, he nominated thirty-nine people for twenty-seven different federal appellate judgeships that were blocked by the Senate Democrats either directly in the Senate Judiciary Committee or on the full Senate floor using a filibuster....
- George W. Bush Supreme Court candidates
External links
In approximate chronological order:- National Review Online - Bench Memos - Republicans Who Dealed
- CNN - Senators compromise on filibusters
- National Public Radio - Senator Pryor on the 'Gang of 14' Filibuster Deal
- San Francisco Chronicle - Senate ends filibuster for judicial nominee
- Center for Individual Freedom - Confirmation Watch - Senate Sellout
- The Hill - Social security is next for Gang of Fourteen
- Economist's View - Social Security Reform, Gridlock, and the Gang of Fourteen
- GOPUSA - Commentary Corner - Constitutional Option: Gang of Fourteen - Won the Battle, Not the War
- National Review Online - The "Mainstream" Doesn't Run Through Main Street
- Family Research Council - (Tony Perkins') Washington Update - The Gang of Fourteen Minutes
- RenewAmerica - Issues analysis - A Senate showdown vs. a moderating compromise
- The Moderate Voice: Senate Moderates Avert Polarizing Filibuster Showdown
- Bush disappointed by Alito hearings schedule
- Crisis Mode - A fair and constitutional option to beat the filibuster game. By Senator Orrin G. Hatch