The Volokh Conspiracy
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The First Real Judicial Filibuster
Remembering the first time a partisan Senate minority blocked a judicial nomination that enjoyed majority support.
On May 9, 2001, President George W. Bush nominated Miguel Estrada to the U.S. Court of Appeals to the D.C. Circuit. If confirmed, Estrada would have been the first Latino to serve on this court, but it was not to be.
At the time of Estrada's nomination, the Senate was split 50-50, leaving Vice President Dick Cheney as the tie-breaking vote. A few weeks later, Senator James Jeffords switched his party affiliation, handing Senate control to the Democrats, who refused to act on Estrada's nomination. As was revealed in leaked memoranda from Senate leadership and the Judiciary Committee, Senate Democrats feared confirming Estrada would set him up for a subsequent Supreme Court nomination and it would be too politically difficult to oppose the first Latino nominated to the High Court.
Republicans regained control of the Senate in the 2002 election, but Miguel Estrada would still not get confirmed. In March 2003, forty-four of the forty-nine Senators in the Democratic caucus voted against cloture, blocking full consideration of the nomination. There would be six more cloture votes on the Estrada nomination over the next six months, all of which failed. This marked the first time in our nation's history that a filibuster was used to block a judicial nomination that enjoyed majority support.
The fight over Miguel Estrada's nomination may not have attracted the same degree of attention as Supreme Court battles, but it had a dramatic effect on how many conservatives and Senate Republicans viewed the judicial nomination process -- and led to the regular use of cloture as a means of slowing or blocking judicial nominees. Prior to Miguel Estrada, it had never been the case that a judicial nominee had been required to have the support of 60 Senators to be confirmed.
Prior to the Estrada nomination, it was unusual for a cloture vote to be required, and the sole time a cloture vote had failed and a judicial nomination was unsuccessful*, the nominee in question (Associate Justice Abe Fortas who had been nominated to be Chief Justice) faced bipartisan opposition and lacked majority support. (Indeed, many saw the cloture vote as a test to see whether 50 Senators would support him -- a test Fortas failed.) 1968 was the first time a cloture vote had ever been requested for a judicial nominee, and such votes remained a rarity for the next thirty-five years. Judges opposed by forty-some Senators were the exception, to be sure, but they were also routinely confirmed. (I have surveyed this history before, and also recommend this CRS Report on the subject.)
The Estrada filibuster marked a dramatic escalation in judicial nomination obstruction -- and that escalation was ratcheted up further when, after Senate Republicans filibustered Democratic nominees, Senator Majority Leader Harry Reid forced through a reinterpretation of Senate rules to preclude filibusters for judicial nominations (the so-called "nuclear option"). Filibusters were apparently only to be allowed for Republican nominees.
The latest installment of Ed Whelan's highly informative Confirmation Tales series revisits the Estrada nomination, and how it poisoned the well for comity and cooperation on judicial nominations, with an interview of Steven Duffield. who worked for the Senate leadership at the time. Among other things, Duffield recounts how Senate Republicans lacked the votes to "go nuclear" at the time (though fear that they might get to 50 votes for a rule change ultimately led to the "Gang of 14" deal to temporarily set the filibuster aside), and how the judicial confirmation battles of the 2000s established a new norm under which it was appropriate to oppose a judicial nominee for no reason other than disagreement with his or her judicial philosophy. (For more on this history, see this post and the links therein.)
From the Duffield interview:
Just as we warned at the time, the Democrats' decision to filibuster the Estrada nomination was a major inflection point, both in the confirmation wars and in the history of the Senate more broadly.
Let's start with the confirmation wars. The filibuster fundamentally changed the expectations regarding how senators in the party opposite the president's party would assess lower-court nominees: the fight over judicial philosophy was now front and center.
The question of "competence" versus "ideology" (or "judicial philosophy") was still being hotly contested in the early 2000s. Senator Orrin Hatch, who had famously supported Bill Clinton's nomination of Ruth Bader Ginsburg to the Supreme Court, tried valiantly to convince senators that, except in truly extraordinary circumstances, the core question should be competence. It's a battle he was already losing when Estrada was nominated, and we saw it die altogether during 2003. It's now a relic of the past. . . .
The animosity and the frustration with a party-wide assault on comity and cooperation have certainly migrated into other areas, with a tit-for-tat environment that has made the Senate far weaker as an institution than it was or than it should be. People might hate the "club" culture of the old Senate, but is this better?
It is deeply regrettable that a handful of activists were able to persuade the filibustering senators that it was better to unravel the Senate's messy but still-effective ecosystem than to do the hard work of persuading their Republican colleagues to oppose the nominees on the merits. We have a far less productive Senate today because of those judgment errors in 2003.
There are several more Confirmation Tales posts on the Estrada nomination and inauguration of the filibuster as a means of blocking confirmation, and they are largely consistent with a point I have often made on this blog: There was no meaningful history of filibusters, or even cloture votes, prior to the Estrada nomination, and the use of a filibuster to block a highly qualified, broadly esteemed nominee who enjoyed bipartisan, majority support, was a major turning point in judicial confirmation battles. Indeed, it is quite possible that had Miguel Estrada been confirmed, we would have a more functional Senate, and Merrick Garland would be a Supreme Court justice instead of Attorney General.
*Update: I revised this sentence to note there were two instance between 1968 and 2003 in which cloture votes failed, but the nomination proceeded and the nominee was confirmed. This occurred with the 1971 nomination of William Rehnquist to the Supreme Court (whom some Senate Democrats attempted to filibuster when he was nominated to be Chief Justice as well) and the 1999 district court nomination of Ted Stewart, who was subsequently confirmed 95-3.
