The Battle Over Federal Judges: What is a Filibuster?

In 2004, President Bush campaigned on the importance of federal judicial appointments and their critical importance for the future of America. The possibility of one or more Supreme Court vacancies in the next four years only heightens the urgency of this issue. Current newspaper accounts of the political battles in Congress over judicial appointments are full of unfamiliar terms such as: "filibuster," "cloture," "up or down vote," and "nuclear option." Let's try to clear up the confusion and answer some basic questions about this important subject.

Q. What's holding up the process on President Bush's nominees? What is a "filibuster"?

A. Between January, 2003, and January, 2005 (the 108th Congress) the Senate Democrats, in an unprecedented manner, effectively blocked 10 of 34 Bush nominees (29 percent of all Circuit Court nominees) for various Circuit Court of Appeals positions by using a technique known as a "filibuster."

If you remember the movie "Mr. Smith Goes to Washington," you'll recall James Stewart as the new, naive senator who, in order to save his reputation and expose the crooked politicians who have framed him, begins a filibuster by reading books out loud on the Senate floor for hours and days on end while waiting for the evidence to arrive that will vindicate him. Filibustering today is a much easier and informal affair, but you get the picture. The idea is that a minority can prevent a vote on a motion by prolonging debate indefinitely. Unless the non-filibustering majority can invoke cloture (see below), proceedings on a given nomination will cease.

Filibusters of judicial nominees have never (before 2003) been used to prevent a vote on a candidate who had majority support in the Senate. Filibustering judicial nominees prevents an up or down majority vote, and effectively raises the confirmation vote requirement to 60 votes, which is the amount needed to end the filibuster. Bush appointees that otherwise would have been confirmed by a majority of the Senate, have instead been blocked by the unprecedented use of the filibuster by Democrats. The Democrats have threatened to continue using the filibuster against any Bush appointees who express antipathy toward Roe v. Wade or other judicially legislated "rights" that activist courts have created over the last few decades.

Q. What is "cloture?"

A. Cloture is the parliamentary procedural motion by which the Senate can cut off debate (or filibuster) on any judicial nominee and force an up or down vote. In the case of a Democratic filibuster of a judicial nominee in the full Senate, 60 votes would be needed, according to the Senate's own rules, to end debate and allow the nomination to proceed to an up or down vote. Since cloture votes tend to follow party lines, the Republicans, with 55 seats in the Senate, do not have the votes necessary to end a filibuster.

Q. What is the "nuclear option" the newspapers are talking about?

A. The "nuclear option" (or more aptly titled the "Constitutional option") is the procedural method Senate Republicans are considering that would restore the Senate tradition of up-or-down votes on judicial nominees. If accomplished, the Democrats would effectively be prevented from filibustering any more Bush judicial nominees. It's called "nuclear" because it is highly controversial within the Senate itself, its constitutionality is hotly debated, and its exercise may bring the business of the Senate to a screeching halt, as Democratic Senate Minority Leader Harry Reid has threatened.

However, since the Democrats have used the similarly controversial filibuster in an unprecedented way to block Bush's nominations, the Republicans appear willing to raise the stakes as well in order to put judicial selections back on the course they were on before 2001.

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