Democrats Threaten to Filibuster Unnamed Court Nominee

Democratic leaders have signaled that they may veto President Bush’s second pick to the Supreme Court if they regard the choice as “too conservative.”

Filibuster Showdown Looms In Senate (WaPo, A4)

The upcoming battle over a successor to Supreme Court Justice Sandra Day O’Connor threatens to plunge the Senate into another bitter confrontation over filibusters and the “nuclear option,” with Democrats already threatening to use any means possible to thwart President Bush if he nominates someone they regard as too conservative. The roster of those threatening a filibuster includes liberal and moderate Democrats, supporters and opponents of John G. Roberts Jr., Democratic National Committee Chairman Howard Dean, and at least one of the seven Democratic senators who were part of the bipartisan “Gang of 14.”

Democrats have splintered almost evenly over Roberts’s nomination as chief justice, leading to frustration among party activists who think their elected leaders did not put up a serious fight against him. Pollsters have told party leaders that a show of opposition against Bush’s next nominee could be crucial to restoring enthusiasm among the rank and file on the left.

In an interview, Dean said Democratic unity is essential in the upcoming battle and that the party “absolutely” should be prepared to filibuster — holding unlimited debate and preventing an up-or-down vote — Bush’s next high court nominee, if he taps someone they find unacceptably ideological. He cited appellate court judges Priscilla R. Owen and Janice Rogers Brown as two who would be likely to trigger such opposition. “Those people are clearly not qualified to sit on the Supreme Court, and we’re going to do everything we can to make sure they don’t,” he said. “If we lose, better to go down fighting and standing for what we believe in, because we will not win an election if the public doesn’t think we’ll stand up for what we believe in.”

I haven’t studied the records of Owen and Brown enough to have a firm opinion on whether they are “qualifed to sit on the Supreme Court.” It is rather absurd, though, to suggest that they are sufficiently extreme ideologically as to merit filibuster when the “Gang of 14” specifically agreed that they weren’t just months ago.

The notion that the Democrats need to make a stand or risk losing their base is a recipe for continued minority status. Kevin Drum makes the case in a lengthy post, which I commend to my readers. He points out E. J. Dionne’s latest column which notes, “According to the network exit polls, 21 percent of the voters who cast ballots in 2004 called themselves liberal, 34 percent said they were conservative and 45 percent called themselves moderate.” Kevin adds,

These numbers have been rock steady for decades, and their meaning is simple: energizing the base just isn’t enough for Democrats. Even if every hardcore liberal in the country votes Democratic, we have to win about three-quarters of the moderates to gain a majority. That means we have to win support pretty far into the conservative end of that moderate center, and people like that simply aren’t going to respond to anti-war rallies and screaming campaigns against John Roberts.


[T]he American public elected a conservative president and a conservative Senate. If we want better nominees, that’s what needs to change.

And the way to change that is to change the minds of centrist voters who are tiring of George Bush and the Republican party but still wary of Democrats. They may say they’re fed up with Bush, but when it comes time to pull the lever on election day they also need to feel like it’s safe to vote for a Democrat. Right now they still don’t.

Quite right. Now, unlike Kevin, I don’t want this to change. But the country needs two viable parties to maintain a healthy political system. Without constant fear of losing the next election, a party becomes lazy, if not corrupt. It happened to the Democrats not so long ago and there are too many signs that it’s happening to the GOP now.

For the Democrats to be a viable alternative, though, they need leaders who are more representative of the mainstream of their own party–much less the American electorate– than Howard Dean or Nancy Pelosi. Even rank and file Democrats think they’re shrill and unsteady.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Sneem says:

    You gotta love these guys. No one has even been nominated and already they are talking filibuster. They are as predictable as the sun coming up. Maybe they would do better if they spent their time coming up with an idea or two.

  2. Anderson says:

    Well, if I were a Dem asked to vote on an unnamed nominee, I’d filibuster too!


  3. SoloD says:

    I think that Brown and Owens were compromises by the Dems on the Gang of 14, meaning that they didn’t like them, but were willing to allow them through to appellate positions in exchange for some of the others not going through. (I don’t remember any Democrats, or even Republican, members of the Gang of 14 talking about them being qualified, just that it was necessary to avoid the nuclear option showdown.) But the Supreme Court is a different case, and certainly the Dems have a right to filibuster if they think they need to.