The Judicial Confirmations Obstruction Answer Key

 (Last Updated November 11, 2003)

Question 1: (d)

According 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 President’s 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.



Question 2: (a)

The 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.



Question 3: (a)

The Constitution never discusses filibusters in the U.S. Senate or in any other body of the federal government. In fact, even the Senate’s own rules do not speak explicitly of a "filibuster." Instead, the Senate’s 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.



Question 4: (c)

There 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.



Question 5: (b)

Under the "Blue Slip Process," a Senator has "veto" power over judicial nominees nominated to the Senator’s "home state." If the Senator does not return his "blue slip" on any judicial nominee that will sit in the Senator’s 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 floor.

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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