by Michelle D. Schwartz, Director of Justice Programs

As talk increasingly turns to Harry Reid’s potential invocation of the “nuclear option” to do away with the filibuster – at least on nominations – as early as July, it’s tempting to think back to the last time we heard such atomic language in the U.S. Senate.

It was 2005, and then-Majority Leader Bill Frist, frustrated by the filibusters of some of President George W. Bush’s judicial nominees by a then-Democratic minority, threatened to change the Senate rules through a simple majority vote.

What happened next is now Senate folklore:  eight years ago this week, a Gang of 14 rode in on horseback and saved the Senate from itself.

Or did they?

The Gang of 14 – seven Democrats and seven Republicans – agreed to filibuster judicial nominees only in “extraordinary circumstances.”  But an analysis of contested cloture votes on judicial nominations over the past eight years shows that, when push came to shove, only the Democrats in the Gang of 14 defined “extraordinary” in a way that’s recognizable to ordinary Americans.

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As the chart above shows, all seven Democratic members of the Gang of 14 served for the remaining 3 ½ years of President George W. Bush’s term.  During that period:

  • There were six contested cloture votes on judicial nominees, meaning the Democratic Gang of 14ers had 42 opportunities to weigh in on contested cloture votes for judicial nominees.
  • In all of those votes, there were only two no votes by Gang of 14 Democrats.
  • No Democratic member of the Gang of 14 voted no more than once—and five Democrats never voted no.

The remaining Republican Gang of 14ers’ votes during the Obama Administration tell a vastly different story.  There are only four Republican members of the Gang of 14 who have served for some portion of President Obama’s almost 4 ½ years in office.  During that period:

  • There have been eight contested cloture votes on judicial nominees (two on Caitlin Halligan).
  • The Republican Gang of 14ers have had 31 opportunities to weigh in on contested cloture votes for judicial nominees.  (Senator Snowe retired at the end of the 112th Congress; as a result, she was not present for the second cloture vote on Caitlin Halligan.)
  • Republican members of the Gang of 14 have voted no on cloture in 15 of those 31 cases—nearly 50 percent.
  • Every Republican Gang of 14er has voted no at least three times.

Now, some have argued that the Gang of 14 agreement only applied to the remainder of the 109th Congress, which ended at the beginning of 2007.  However, the Democratic members of the Gang didn’t operate that way.  On October 24, 2007 – well into the 110th Congress – six out of seven of them voted to invoke cloture on now-Fifth Circuit Judge Leslie Southwick’s nomination, even though the majority of Democrats voted no and Southwick only garnered 62 votes for cloture.

More importantly, if even the most purportedly reasonable and moderate Republicans of eight years ago cannot be counted on today, how can we possibly expect to see forward movement in the Senate?
We will see critical tests in the coming weeks and months, not only on judicial nominations, but also on the President’s nominations to the Consumer Financial Protection Bureau, the Department of Labor, the Environmental Protection Agency, and the National Labor Relations Board.  It’s high time for Republicans to show that they are willing and able to staff the very institutions that allow our democracy to function.

Otherwise, it looks like more and more Senate Democrats are waking up to the realization that unilateral disarmament – like the Gang of 14 and the failed “handshake agreement” from earlier this year – leaves you in a precarious position during a nuclear standoff.

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