Jon Kyl, June 6, 2005

For more than two hundred years, even the most controversial of presidential judicial nominees had been accorded the courtesy of an up-or-down vote when they reach the floor of the Senate. In the last session of Congress, however, the Democratic leadership broke with this tradition, routinely filibustering (requiring a 60-vote supermajority to end debate) 10 of President Bush's nominees to appellate courts and threatening the same treatment of six more. As a result, President Bush had fewer circuit court nominees confirmed in his first term than any president in modern times.

The effect was not only to deny these nominees a confirmation vote, but also to prevent the Senate from exercising its constitutional obligation to vote.

Last month, Senate Majority Leader Bill Frist (R-TN) planned to break this obstructionist deadlock by restoring the tradition of voting on all nominees. Although this was characterized in near-apocalyptic terms by opponents, similar parliamentary steps were taken four times by former Majority Leader Robert Byrd (D-WV) during his tenure as majority leader in the 1970s and 80s.

At the last minute, a group of 14 senators precluded Sen. Frist’s plans to invoke what some have taken to calling the "Byrd option," by agreeing to move forward with three long-stalled judicial nominations along with a promise that others would not be obstructed except under undefined "extraordinary circumstances." This group of seven Republicans and seven Democrats effectively took control of the process by denying the Majority Leader the votes he needed for the "Byrd option," but also denying Senate Democratic Leader Harry Reid (D-NV) the votes he would need to continue filibustering.

Shortly afterward, the Senate confirmed Judge Priscilla Owen of Texas to the 5th Circuit Court. One of the first filibuster victims, she had languished for more than four years awaiting a vote. This week should see the confirmation of Janice Rogers Brown and William Pryor, both of whom have waited two years for their votes. Other qualified nominees like Henry Saad, Terrence Boyle, and William Myers may have to continue to wait. The 14-senator agreement did not guarantee them votes.

Whether the agreement holds will, obviously, depend on how it is implemented. Although one hopes for a return to the tradition of allowing up-or-down votes on all judicial nominees, signs are not encouraging; no sooner had Judge Owen been confirmed than the Democrats filibustered the nomination of John Bolton to represent the United States at the United Nations. While his was not a judicial position, it had been hoped that all of the expressions of goodwill that accompanied the judicial agreement might carry over to other nominations as well. Apparently not.

Nonetheless, if there are no more judicial filibusters, the matter is resolved, at least for now. But if the minority party resumes filibustering in circumstances that some of the seven majority party signatories to the agreement do not agree are "extraordinary," then Majority Leader Bill Frist could exercise the "Byrd option" to ensure that votes occur. In that event, I would support restoring the 200-year-plus precedent in the Senate that allows up-or-down votes on judicial nominees who have majority support.

The whole matter could arise again very quickly, given the increasing speculation that Supreme Court Chief Justice William Rehnquist may soon announce his retirement. If he does, and his replacement’s nomination is filibustered, we’ll be right back where we started.

One more thing: to those who say the Senate should quit wasting its time bickering over judicial nominees and get on to "more important business," I say, we can, and should, do both. Given the increasing role that the courts play in our society today, the Senate’s constitutional obligation to provide "advise and consent" on presidential nominations is important business.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.