Gang of 14 - Background

Background

The Democrats had been using the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush. In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats. The ten Bush appellate nominees who were filibustered were Miguel Estrada, Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown.

As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott termed the "nuclear option" and which Republicans tended to call the "constitutional option." This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes.

The theory behind the "nuclear option" was that the Senate had the right to determine its own rules and that those rules could be determined on the basis of a majority vote. Democrats objected, arguing that the Senate's rules could not be changed without a 2/3 vote as stated in the Senate Rules themselves. Republicans countered that the Senate's power to govern itself was founded in the Constitution itself and that internal Senate Rules could not deny that power.

Republicans had only a two-vote majority in the 108th Congress, so they were in a weak position to implement this procedural maneuver. Things changed in 2005 due to the 2004 elections. With President Bush winning re-election and the Republicans picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation.

Because of the political split in the Senate at the time (55 Republicans, 44 Democrats and 1 Independent), if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the "nuclear option" and force cloture on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen – the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist and Minority Leader Harry Reid having evidently given up all pretense of finding a compromise (each have been accused of having desired the showdown for their own political ends), some members in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.

The Gang of 14 signed an agreement, pertaining to the 109th Congress only, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances," as defined by each individual senator), and in turn the seven Senate Republicans would break with Bill Frist and the Republican leadership on voting for the "nuclear option." As the Republicans held a five-vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented the Republicans from winning a simple majority to uphold a change in the interpretation of Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships, the group members were hailed as moderates who put aside severe partisanship to do what was best for the Senate. At the same time, some of the Republican members of the Gang of 14 faced political firestorms from the conservative base due to their participation in this agreement.

Three of the filibustered nominees (Estrada, Pickering and Kuhl) having withdrawn, in the 109th Congress, five of the seven filibustered nominees (Owen, McKeague, Griffin, Pryor and Brown) were allowed to be confirmed as a result of the deal brokered by the Gang.

The Gang became active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. On November 3, 2005, the group met to discuss the nomination of Samuel Alito to the high court, but came to no conclusions, noting that the hearing process had only just begun in his case. On January 30, 2006, the members of the group unanimously supported a cloture vote in the Alito nomination, providing more than enough votes to prevent a filibuster.