Senators Working on Filibuster Compromise

Two Senate graybeards, John Warner and Robert Byrd, are working on a compromise solution to avert the so-called “nuclear option” from being invoked early next week.

Senators Working on Filibuster Compromise (AP)

Two of the Senate’s senior statesmen, Republican John Warner and Democrat Robert Byrd, are stepping to the forefront of efforts to avert a showdown over whether an out-of-power party can use Senate filibusters to effectively thwart a president from reshaping the nation’s courts to his liking. But time was running out on Byrd and Warner’s attempt to bridge warring senatorial factions, with Senate Majority Leader Bill Frist, R-Tenn., starting a countdown Friday on how long senators would debate Texas Supreme Court Justice Priscilla Owen’s nomination to the 5th Circuit U.S. Court of Appeals.

If senators are forced to vote next week on Owen’s nomination to the New Orleans-based court, centrists say a historic confrontation is sure to follow over whether filibusters of appellate and Supreme Court nominees should be prohibited during the rest of the Bush presidency. “Once you start into the procedural votes, the real procedural votes on the first judge, then it’s going to be very difficult to put the genie back into the bottle,” said Sen. Mike DeWine (news, bio, voting record), R-Ohio. “I think most of us look at that as once you have that first vote, it’s going to be very difficult to get a deal done.”

Frist was expected to announce Friday that the Senate would hold a test vote on Owen on Tuesday, and if she doesn’t garner 60 votes — the threshold for overcoming a filibuster — he then will move to have the Senate declare that filibusters are illegal for Supreme Court and federal appellate court nominees — a change that has been labeled the “nuclear option.”

The Republican-controlled Senate has been debating Owen’s nomination since Wednesday. “We will continue that debate,” Frist said. “Ten hours, 20 hours, 30 hours, as many hours as it takes for senators to air their views. But at some point, that debate should end and there should be a vote.”

I doubt that Warner and Byrd will be able to work out an acceptable solution. The level of trust on both sides of the aisle is simply too low. Republicans, legitimately in my view, believe that they should be able to get an up-or-down vote on presidential nominees in a situation where the public has installed them as the majority in both Houses of Congress and in the White House. Democrats, also legitimately, believe that the institution of the filibuster is a time honored right of strong minorities.

The problem is that the filibuster has gone from a tool invoked in rare occasions on matters of stong principle to a routine legislative tactic. In that environment, it wrecks the entire balance of the system. In a more collegial environment, the rule change would be unnecessary because both sides could agree that only the most controversial judges should be subject to this procedure. When it’s used on the likes of Bill Pryor or Priscilla Owen, candidates well within the American mainstream, it’s hard to defend.

FILED UNDER: Congress, Environment, Law and the Courts, , , , , ,
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. Rick DeMent says:

    Yet republicans didn’t give a rat’s ass about having an up or down vote on Clinton nominees that they blue slipped during his administration. Frankly any stand on this issue that refuses to acknowledge this fact is disingenuous political posturing and nothing more.

    But if pretending that there is some vital constitutional question involved in all of the political s__t slinging makes you sleep better at night then by all means, continue in you’re rationalization and hope like hell a democrat doesn’t get elected in 2008 or it will mean all moon-bat all the time on the federal bench and conservatives will have only themselves to blame.

  2. SoloD says:

    But is it smart in the long run for the GOP to do away with the filibuster?

    It seems to me that a majority that cannot fathom itself in the minority is usually closer than they think.

  3. DC Loser says:

    The GOP has a very short memory. For a party that spent most of its recent history in the minority, they sure like to burn bridges.

  4. Karl Maher says:

    I don’t seem to be able to ping your site today, either through Haloscan or the wizbang thingie. Anyway, at Vote for Judges I briefly discuss a little-remarked-upon circumstance of Byrd’s changing of the cloture threshold in 1975.

  5. Jim Rhoads says:


    I think you broke the code on this one in your last graph. I am not sure what will be done about it, but the rational thing to do would be to go back to the tradition of using the filibuster only in extremis.

    That is the gist of the latest attempts at compromise. The nitty gritty there is the definition of terms like “extreme” and “extraordinary”. In today’s climate of rhetorical excess, even those seemingly easily understood concepts are subject to misuse. In addition, deciding which if any of the “locked out 10” to throw to the wolves is tough.

  6. Alpha.Monkey says:

    I think the constitution is written such that overwhelming power is nearly impossible to achieve except on issues of broad consensus. The idea is ensure that minorities have a voice, too. This “nuclear option” is so un-American, it stinks of single-party rule, and that is no democracy.

    Every legal authority I’ve read says that these 10 are activist judges, far to the right of the political mainstream, owing their careers to cronyism and political axe-grinding, rather than legal merit.

    Republicans blocked 60 of Clinton’s appointees, and now they’re crying foul over 10, count’em 10. They’ve got the presidency and both houses by razor-thin majorities, and they somehow think that they don’t need to concede or compromise. What universe does this happen in? How spoiled can you get? Unbelieveable complainers. They’re due for some serious comeuppance when they’re in the minority.

    And yes, it’s going to be sooner than they think.

  7. Bob says:

    Well, liberals have memory problems on this issue also. The filibuster was used mainly to prevent anti-lynching and civil rights legislation. It’s last use that stopped major legislation was Clinton’s health care plan. Many liberal Senators tried to abolish the filibuster in the 1990s.

    The filibuster will still be available to stop legislation even if the GOP prevails on the judge issue. Knowing its history, it would better be gone for all purposes.

    The holds and blue slips and the like should go also.

  8. SoloD says:


    Realistically, this filibuster vote is the Rubicon, once it has been crossed, the filibuster will be a thing of the past, even for legislation.

  9. John Logan says:

    The problem with the analysis that the filibuster on judges is unconstitutional is that the Constitution specifically allows each branch of the Congress to set its own rules. See Art. I, Sec. 5, which reads as follows:

    “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

    Therefore if a Rule of the Senate allows filibusters of anything, including judicial nominee, it is valid and obviously not unconstitutional. The question then becomes do the Senate Rules allow filibusters?

    Senate Rule XXII, Section 2 reads as follows:

    2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

    “Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”

    Clearly then since the U.S. Constitution authorizes the Senate to determine its own rules and since the Senate has done so and since Senate Rule XXII is part of the Senate Rules, it is constitutional.

    This is nothing more than a naked power grab by the majority. They have the power to do this because the Federal Courts won’t interfere with the internal make-up of either the House or the Senate. Thus, they can get away with it. I understand that part. I don’t like it, but I understand it. Just don’t insult our intelligence by claiming constitutional authority for what may happen next week.

  10. legion says:

    Dude – you really believe Priscilla Owen is “well within the American mainstream”?!? Even Alberto Gonzalez thinks she’s unqualified and dangerous. Where do you get this?

  11. John Logan says:

    Judge Brown is only in the mainstream if you consider the goals of the Federalist Society, which she seems to be in agreement with, as mainstream. She is only in the mainstream if you consider the Constitution in Exile movement mainstream. The Constitution in Exile movement wants to restore analysis of legislation back the 1937, which was the so-called “Lochner era.”

    This analysis would allow Federal courts to stop the enforcement of labor legislation such as wage and hours legislation, workplace safety legislation, and possibly legislation prohibiting age, sex, and racial discrimination in employment. The basis for such judicial rulings would be that such legislation violate the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.

    Such analysis was rejected by the U.S. Supreme Court in 1937 in the Carolene Products case. Interestingly that is the date that Judge Brown uses when she complains of a “socialist revolution” taking place in America.

    I doubt that most Americans would find such a judge “mainstream.”

  12. James Joyner says:


    Three points.

    First, the Supremes only changed their mind in 1937 after FDR threatened to “pack” the court by adding six additional justices. Their reasoning was laughably dubious and contradicted not only the plain meaning of the Constitution but 150 years of predent.

    Second, just because a judge has a certain view of what the Constitution means doesn’t mean that they’re going to swim against the tide of stare decisis. Perhaps if she were being appointed to the Supreme Court, I suppose, she might do that. But as a lower court judge? No.

    Finally, Antonin Scalia basically holds those views. His views were well known when he was confirmed 98-0.

  13. John Logan says:

    The reasoning of the Constitution in Exile movement is highly dubious. Nowhere in the Constitution is the term “freedom of contract” used and, for that matter, a good case could be made that substantive due process analysis is suspect.

    Second, why in the world should any Democrat take the chance on Judge Brown’s appointment just because she is going to be a lower court judge? That makes no sense, and, by the way, wasn’t the test being used by the GOP during the Clinton adminstration.

    Finally, Justice Scalia is not part of the Constitution in Exile movement. He seemingly has a problem with non-ennumerated rights being incorporated into the due process clause, hence his attacks on the right to privacy decisions. Since he seems to have intellectual integrity, I don’t believe that he would support a return to the Lochner era.

  14. McGehee says:

    His views were well known when he was confirmed 98-0.

    In a Democrat-majority Senate, at that. A lot has changed in the Dem Senate caucus since then, and I think it explains why its numbers keep going down with each election.

  15. McGehee says:

    The reasoning of the Constitution in Exile movement is highly dubious.

    What “Constitution in Exile” movement!? Were they on the grassy knoll in Dallas too?


  16. David says:

    And political commentators yammer endlessly wondering about why the public’s has no interest in the political process. . .

    For almost six years, we have had a Republican Congress whose goal is to ram through radical legislation far outside the mainstream largely through a mix of lies and distortion to throw the public and the ineffectual media off the truth trail. We have a Democratic party who doesn’t appear to stand for anything except hating Republicans, yet even with such a limited goal they seem incablable of effectively arguing that. And we have a president who made it to his first term through the vote of one Supreme Court judge after loosing the popular vote by a large margin and made it to his second term by a reasonably close vote, but largely by dodging any questions on his true legislative intent and instead running a “Shock and Awe” campaign against his war hero opponent. This of course was ironic, because while said opponent was volunteering for combat duty in Vietnam and winning medals, the President was dodging the draft and carousing bars and woman.

    Now we are caught in this ridiculous fight about a small handful of judges, many of whom are outside the mainstream of most Americans values. We are at war in two countries, every day we hear that healthcare, education and social security are on the brink of disaster. The economy seems to be stuck in a permenant neutral. And what about those terrorists on our doorstep the president talked so much about during the election? Yet all our politicians seems to want to do is fight over is whether 12 judges out of the 100s that have been voted in should get promotions to a higher court.

    And the one person who has the power to stop the craziness and get back to work just eggs it on. Where is the leadership from this president? Why does he allow lies about how few judges the Deomcrats have voted in to be propogated? Why does he refuse to end the insanity over this sandbox fight?

    No wonder why more people are interested in voting for the next American Idol.

  17. John Logan says:

    I don’t think they were on the grassy knoll, but there is such a movement. Check out this article from the New York Times Magazine for April 17, 2005:The Unregulated Offensive By JEFFREY ROSEN (NYT)

    The reason why the Dems are losing ground in the Senate is related to the GOP dominance of the South. Out of 22 possible Senate positions in the states of the Old Confederacy, 18 are held by Republicans. Take away those 11 states and the GOP doesn’t control the Senate, the House, and doesn’t win the presidency in either the popular vote or the electoral college.

    Back to Scalia, however, you don’t make clear why you believe that Democrats are losing Senate seats because they don’t support candidates like Scalia. I am curious what you mean by that.