George W. Bush Judicial Appointment Controversies - 108th Congress

108th Congress

During the 108th Congress in which the Republicans regained control of the Senate by a 51-49 margin, the nominees that the Senate Democrats had blocked in the 107th Congress began to be moved through the now Republican Senate Judiciary Committee. Subsequently Senate Democrats started to filibuster judicial nominees. On February 12, 2003, Miguel Estrada, a nominee for the D.C. Circuit, became the first court of appeals nominee ever to be successfully filibustered. Later, nine other conservative court of appeals nominees were also filibustered. These nine were 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. Three of the nominees (Estrada, Pickering and Kuhl) withdrew their nominations before the end of the 108th Congress.

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". This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. However, in the 108th Congress, with only a two vote majority, the Republicans were in a weak position to implement this procedural maneuver.

On October 7, 2004, just prior to the presidential election, Senate Democrats issued a statement complete with statistics arguing that they were not obstructing Bush nominees in any systemic way. Although the included statistics showed that district court candidates nominated by Bush were being confirmed at a higher rate than those similarly situated candidates nominated by Presidents Ronald Reagan and Bill Clinton in their first term, it also showed that Bush's success rate at getting circuit court of appeals nominees confirmed during his first term (67%) was less than those of Reagan (85%) and Clinton (71%).