THE AMERICAN LEGAL AND JUDICIAL SYSTEM| 371You Decide
ADVICE AND CONSENT: PRINCIPLED OPPOSITION
OR OBSTRUCTIONISM?
The use of the fi libuster to stop presidential nominations to the
federal courts has been the source of intense partisan battles
in the past fi fteen years (recall that forty-one senators can stop
action on any bill or nomination through a fi libuster). However,
the positions in those battles are determined by which party
controls the Senate and the presidency. Democrats who railed
against Republican obstruction when Clinton was president
used the same tactics when they were in the minority party and
Bush was president. Now the tables are turned again and some
of the strongest Republican critics of Democratic fi libusters,
such as Jeff Sessions, led the fi rst fi libuster against an Obama
appeals court nominee (which failed).
The partisan struggles have led to serious discussion about
limiting the use of the fi libuster for court nominations. In
Bush’s fi rst term, Senate Democrats stopped lower court nom-
inees through the fi libuster. After winning reelection in 2004,
President Bush resubmitted seven nominees who had been
rejected in the previous Senate (and thirteen more who were
nominated in the previous term but did not come up for a vote).
After Democrats indicated that they were not going to aban-
don the fi libusters, the Republican leadership in the Senate
considered implementing the “nuclear option,” which would
have prevented fi libusters on judicial nominations (this plan
gets its name because Democrats threatened to essentially
shut down the Senate if they lost the fi libuster). This crisis was
defused when the “Gang of 14”—seven moderate Republicans
and seven moderate Democrats—agreed to a compromise that
preserved the Democrats’ right to fi libuster but only in the most
extreme cases. The compromise was not put to a critical test
(both of Bush’s Supreme Court nominees were confi rmed with-
out fi libusters), and Republicans have pursued an approach of
delaying nominations through holds in the Judiciary Committee
and on the fl oor.
Let’s do a thought experiment to try to strip partisanship
from this issue and fi gure out if you support the principle of
fi libustering judicial nominations. Put yourself in the place of
a Democratic senator on the Judiciary Committee during the
Bush years. President Bush has nominated a candidate for an
appeals court position whom you believe is unqualifi ed. Should
you support a fi libuster to stop the nomination even if it means
that the Republican leadership might take away the fi libus-
ter? Now put yourself in the place of a Republican senator.
You strongly favor President Bush’s right to nominate whom
he wants to the federal courts, and you support his policy posi-
tions, especially on abortion and the regulation of the free mar-
ket. However, the Democrats are opposed and threatening to
fi libuster. You have to decide whether to support the “nuclear
When they are the minority party in the Senate, both Democrats
and Republicans have been willing to use the fi libuster to block
judicial nominees.Critical Thinking Questions
- What would you do in the situation just described?
Why? - Now to complete the thought experiment, fl ip the
positions of the senators for an Obama nominee to
the appeals court. Is your position still the same?
option” to take away the Democrats’ right to fi libuster the nom-
ination. There are at least fi fty-six votes in favor of the nomi-
nee but not the sixty needed to cut off the fi libuster. On the one
hand, you don’t think it is fair that Democrats are obstructing
the vote. On the other hand, you were in the Senate back when
the Republicans were in the minority, and you remember how
important the fi libuster was to protect the views of the minor-
ity party. You are worried that supporting the “nuclear option”
would seriously damage the institution that you value and
respect as the world’s greatest deliberative body. What is the
best option? You decide. What do you do?THE AMERICAN LEGAL AND JUDICIAL SYSTEM| 371