The Gang of 14 to be Tested

Update: Roll Call reports on April 26 that Specter announced a Judiciary Committee vote on Thursday, April 27, to report the Kavanaugh nomination to the Senate floor.

Second Update: The Senate Judiciary Committee has delayed the scheduled vote on the Kavanaugh nomination.

Third Update: Much more recent material on judicial nominations starting at the top.


National Journal (subscription required) reports that Bill Frist will schedule May votes on 14 of President Bush's judicial nominations:

Frist Ready To Tee Up The Next Floor Fight Over Judges

Senate Majority Leader Frist wants to bring two controversial judicial nominees to the Senate floor in May -- a strategic move that GOP strategists and aides say would help energize the Republican base and fundraising efforts heading into the November elections. A Frist aide said Tuesday the majority leader is considering scheduling votes next month on President Bush's long-stalled nominations of U.S. District Judge Terrence Boyle to the 4th U.S. Circuit Court of Appeals and White House aide Brett Kavanaugh to the U.S. Circuit Court of Appeals for the District of Columbia. Democrats adamantly oppose both nominees, along with nearly a dozen other Bush nominations. Partisan tension over Bush's judicial picks peaked last May when Frist threatened the so-called nuclear option -- a change in parliamentary procedures to stop minority filibusters of judicial nominees. A group of 14 senators -- seven Republicans and seven Democrats -- formed a pivotal coalition that persuaded both sides to avoid a showdown. The group said senators should not filibuster a president's nominee except under "extraordinary circumstances," which cleared the way for the Senate to approve several nominees.

Brett Kavanaugh is nominated for the US Circuit Court of Appeals for DC, and Boyle for the 4th US Circuit Court of Appeals. Votes for these nominees are far overdue; they both have the support of a majority of the Senate, and were nominated by Bush in 2001. Further, both were left hanging after the 14-Senator judicial compromise of last May.

Kavanaugh was reportedly left out of the deal because:

• he was Ken Starr’s Associate Independent Counsel;
• he was part of the White House staff on Bush’s judicial nominations; and,
• he’s too conservative.

It was reported at the time of the deal that 6 of the 7 Democrats party to it had agreed to filibuster Kavanaugh – with only Ben Nelson declining. Since the deal, and with the shocking revelation that the Administration has wiretapped the calls of terrorists, Senate Democrats have also asked for a Committee hearing to explore Kavanaugh's role in that policy.

Boyle's problem is that he too, is 'ultraconservative.' He's also a protege of Jesse Helms, is overruled too often, and has a poor record on civil rights, according to Senate Democrats. Notably, he's been awaiting a vote for about 15 years - since George H.W. Bush originally nominated him.

Bob Novak recently reported that Frist and the Senate leadership saw little urgency to schedule votes on stalled judicial nominees like Kavanaugh and Boyle. That seems to have changed. Of Boyle, Novak reports that there are no 'extraordinary circumstances' that would justify a filibuster, and so 'the votes for the nuclear option presumably would be there.' That's certainly a loaded statement. I wonder how accurately that reflects the views of the 7 Republicans in the Gang of 14.

This move comes a little out of the blue. There are comparatively few legislative work days left on the Senate calendar, and lots to vote on. This debate will undoubtedly consume a lot of floor time, and be very contentious. Any potential votes to end filibusters and change Senate rules will take even longer. All this raises the prospect that the Senate could remain in session right up to election day.

A number of members of the Gang of 14 are up for re-election this year, and political considerations will influence some Senators. On the Democratic side, Lieberman, Byrd, and Nelson face re-election this year. Only Nelson has a race perceived as tough, and he's already said he won't support a filibuster. On the Republican side, DeWine and Chafee have competitive races this year, while Olympia Snowe will cruise. Chafee may be put in the toughest spot on this. His primary is May 20, so he will almost certainly have to vote for cloture - and even for the 'nuclear option' - to fend off the challenge from Laffey. He'll probably try to convince fellow New England Republicans Snowe and Collins to vote with him, too. And if McCain wants to be the Republican nominee in 2008, he will have a tough time voting against the 'nuclear option,' - it could be that Frist would schedule a vote partly to draw him out on the issue.

Lots of Republicans will welcome the chance of a Democratic filibuster and a change in the filibuster rule (although such a change is still a long way down the road). While no one seems sure whether the Democratic vote this fall will be energized or not, they are very fearful that Republicans will be apathetic. This kind of fight will be seen by some as a chance to do the right thing - ensure that nominees get a vote - while energizing the base.


Back to the top.