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VOL. 7, NO. 6May 9, 2005

Gnawing at the Nominees: The Fourth Anniversary of Judicial Nomination Obstructionism 

By Virginia C. Armstrong, Ph.D.*, National Chairman

Four years ago today marks the beginning of an unprecedented and unconstitutional effort by Senate Democrats to obstruct judicial nominations and justice in America. On May 9, 2001, President George Bush named his first nominees to the federal courts. The Senate has yet to take a floor vote on two of these nominees-Priscilla Owen and Terrence Boyle. In 2003, Senate Democrats, for the first time in history, began a filibuster process of lower court nominees who had majority support on the Senate floor. The filibuster has denied these nominees an up-or-down vote by the entire Senate. In the last Congress, Democrat obstructionists filibustered ten of Bush's Court of Appeals nominees.

Today, 11 Circuit Court nominees have been waiting more than a year or more for Senate action:

Days Pending for Bush Appeals Court Nominees
NomineeNomination DateDays Pending
Janice Brown, D.C. Circuit 7/25/03644
Brett Kavanaugh, D.C. Circuit7/25/03644
Terrence Boyle, Fourth Circuit5/9/011450
William Haynes, Fourth Circuit9/29/03578
Priscilla Owen, Fifth Circuit5/9/011450
Richard Griffin, Sixth Circuit6/26/021038
David McKeague, Sixth Circuit11/8/011268
Susan Neilson, Sixth Circuit11/8/011268
Henry Saad, Sixth Circuit11/8/011268
William Myers, Ninth Circuit5/15/03715
William Pryor, Eleventh Circuit4/9/03751

Just a few days ago, on April 28, Senate Majority Leader Bill Frist offered a "Fairness Rule" to resolve the judicial nominations battle:

Guaranteed up or down votes on judicial nominations. 

  • Circuit Court and Supreme Court nominees will receive an up or down vote on the U.S. Senate floor.
  • District Court nominees unaffected-no current problem.

    Guaranteed debate time on judicial nominations. 

  • Up to 100 hours of debate.
  • Allows all members an opportunity to have their say.
  • This length of debate time was available for members post-cloture until 1986.

    Guaranteed reporting from Judiciary Committee to floor. 

  • Process to ensure nominees come to the floor.
  • Sen. Arlen Specter "protocols" are mode [S. Res. 327-a timetable in 30-day increments for Senate Judiciary Committee and Senate floor action on nominees].
  • Committee serves critical investigative and oversight process, and that will continue.

    Guaranteed fairness for Senators and nominees. 

  • No blockade at Committee.
  • Full and comprehensive debate.
  • Up or down vote on the Senate floor.

    Guaranteed protection of the legislative filibuster. 

  • No changes for legislative matters-all rights of U.S. Senators for legislation preserved.

    This seemingly "more-than-fair" compromise was rejected by Senate Minority Leader Harry Reid. Instead, Senate Democrats reportedly suggested a compromise of their own: they would drop their filibusters against William Myers (see chart above) and Thomas Griffith (D.C. Circuit nominee) if the GOP would withdraw the nominations of Texas Supreme Court Justice Priscilla Owens and California Supreme Court Justice Janice Rogers Brown (see chart above).

    This is no true compromise. Owens and Brown are two of Bush's most stellar nominees, and the Constitution requires that the entire Senate (not a minority thereof, or a few obstructionists on the Judiciary Committee) must "advise and consent" to judicial nominees. In 214 years, the Senate has approved Presidential nominations by a simple majority vote, and the U. S. Supreme Court held in 1892 that the Constitution requires only a majority vote (51%) unless the document specifically provides for a larger majority (U. S. v. Ballin). The Senate is controlled by the GOP, which should exercise its power and exercise the "constitutional option"-hold a simple majority vote to bring Justices Owens and Brown to the floor for an up-or-down vote.


    Contact your U. S. Senators and Urge Them to
    Exercise Their Constitutional Option-AND Their
    Constitutional Obligation!

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