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Judicial Confirmations Obstruction Answer Key
(Last Updated November 11, 2003)
to Article II, Section 2 of the U.S. Constitution, the President
of the United States "shall appoint" federal judges,
who are confirmed "by and with the Advice and Consent of
the Senate." For more than 200 years, this has meant that
the Senate debates and votes by simple majority to confirm the
Presidents appointments to the federal bench.
Even some judges on the "highest court in the land,"
the U.S. Supreme Court, have been confirmed by slim majority
margins. Most recently, for example, Associate Justice Clarence
Thomas was confirmed to sit on the High Court by a vote of 52-48
in the Senate in 1991.
108th Congress, or the current Senate, is the first in history
to witness simultaneous filibusters on multiple nominations
to the federal judiciary. A minority in the current Senate has
maintained filibusters against multiple nominations to the U.S.
Courts of Appeal specifically, against the nominations
of Miguel Estrada, Priscilla Owen, William Pryor, Charles Pickering,
Janice Rogers Brown, and Carolyn Kuhl.
Until 2003, there had never been a successful filibuster of
a lower court judicial nominee. However, after failing six different
times to achieve the necessary 60 votes to end debate and proceed
to an up-or-down vote on his nomination, Miguel Estrada withdrew
his nomination to sit as a judge on the U.S. Court of Appeals
for the D.C. Circuit.
Constitution never discusses filibusters in the U.S. Senate
or in any other body of the federal government. In fact, even
the Senates own rules do not speak explicitly of a "filibuster."
Instead, the Senates Standing Rules allow for unlimited
debate and set forth a special procedure for ending debate upon
a "cloture" motion approved by a 60-vote supermajority
of the Senate.
While the Constitution does not refer to a "filibuster,"
it does say that "Each House may determine the Rules of
its Proceedings," in Article I, Section 5. The Senate has
used this power to create Standing Rule XXII, which is often
known as the "Cloture Rule" or "Filibuster Rule,"
because it allows a minority of the Senate to prevent a final
up-or-down vote by mustering 41 votes against ending debate.
were only 15 cloture votes taken on judicial nominations in
the more than 200 plus years prior to the beginning of the 108th
Congress in 2003. Of these 15 cloture votes, only four failed
and only one nominee failed to be confirmed (the nomination
of Abe Fortas to be Chief Justice of the U.S. Supreme Court).
In the case of each of the other three failed cloture votes,
the judicial nomination was confirmed.
Beginning in 2003 with the 108th Congress, there has been a
sudden and dramatic increase in filibusters against judicial
nominations and a resulting increase in cloture votes taken.
It is expected that by the end of November 15, 2003, the number
of cloture votes taken on judicial nominees in 108th Congress
alone will exceed the number taken on all other judicial nominations
in American history.
the "Blue Slip Process," a Senator has "veto"
power over judicial nominees nominated to the Senators
"home state." If the Senator does not return his "blue
slip" on any judicial nominee that will sit in the Senators
home state, then that nominee is stalled and does not receive
a hearing before the Senate Judiciary Committee and, as a result,
will not proceed to a final confirmation vote on the Senate
Currently, the two Senators from Michigan, Carl Levin (D-MI)
and Debbie Stabenow (D-MI), are refusing to return their "blue
slips" on four judges nominated to serve on the U.S. Court
of Appeals for the 6th Circuit. These four vacancies, which
are deemed "judicial emergencies" by the Administrative
Office of the U.S. Courts, account for a full quarter, or 25
percent, of the active judgeships on that court.
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