Gang of 14 - Filibuster Revisited in The 109th Congress

Filibuster Revisited in The 109th Congress

In April 2006, Senate Republicans began pushing for the confirmation of two controversial conservative court of appeals nominees who had not been included in the Gang of 14 deal of 2005, district court judge Terrence Boyle and White House aide Brett Kavanaugh. Boyle had been first nominated to the Fourth Circuit in 2001 and Kavanaugh to the D.C. Circuit in 2003. Senate Democratic leader Harry Reid immediately expressed concern over both nominees, threatening to possibly filibuster each one. On May 3, 2006, the seven Democratic members of the Gang of 14 wrote a letter to the Senate Judiciary Committee requesting a second hearing for Kavanaugh. That request was granted the next day. On Tuesday, May 9, Kavanaugh appeared before the Senate Judiciary Committee for his second hearing. Later that same day, the Gang of 14 met to discuss his nomination as well as the nomination of Boyle which had become embroiled in a debate concerning Boyle's failure to recuse himself in several cases. After the meeting, South Carolina senator Lindsey Graham declared that he saw no "extraordinary circumstances" concerning Kavanaugh's nomination. However, several Republican members of the "Gang" refused to address the status of Boyle. The Democratic members said they would request a second hearing for Boyle like they had done earlier for Kavanaugh. On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 Two weeks later on Thursday, May 25, cloture was invoked on Kavanaugh by a vote of 67-30 with all but two members of the Gang of 14 voting to end debate. Senator Inouye voted against invoking cloture, and Senator Salazar did not vote. The next day, Kavanaugh was confirmed to the D.C. Circuit by a vote of 57-36. All of the Republicans and three of the Democrats (Byrd, Landrieu and Nelson) in the Gang voted for confirmation.

Before the Boyle nomination could be addressed, a controversy arose about the nomination of William Haynes, the general counsel of the Department of Defense, to be an appellate judge on the Fourth Circuit. When it was revealed that Republican senator Graham might be holding up Haynes's nomination in committee due to concerns about Haynes' participation in the formulation and implementation of certain torture guidelines suggested by the Bybee memo, there was a conservative uproar. Conservative leaders began applying pressure on Graham in order to get Haynes confirmed. Graham responded to his critics with a letter explaining his position on the nomination. Eventually, Haynes was granted a second hearing like Kavanaugh had been before him. Two days after the July 11 hearing, the Gang met to discuss Haynes' nomination. Their initial response did not seem positive.

Before any further action could be taken on Haynes, however, his nomination (as well as those of four other controversial appellate nominees including Boyle and previously filibustered nominee William Myers) was returned to the White House according to Senate rules on August 3, 2006 in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers and Haynes were renominated, again no action was taken on them in the Senate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29.