Congress is doing no work this month, owing to summer recess, but where the Senate and judicial nominations are concerned, "no work" is merely business as usual. Last week, Republicans again tried without success to lift procedural delays blocking some of President Bush's nominees to the U.S. Courts of Appeals. These delays, known as filibusters, can be broken only by a motion to "invoke cloture," which under Senate rules requires not a simple majority but 60 votes. Republicans have not been able to muster that margin, and they remain unable to seat D.C. Circuit nominee Miguel Estrada, 5th Circuit nominee Priscilla Owen, and 11th Circuit nominee William Pryor. Senate Democrats have signaled they will also oppose cloture on 9th Circuit nominee Carolyn Kuhl.
In the last 35 years, the Senate has taken up 26 cloture votes to break filibusters of judicial nominees, and nearly half (11) have occurred this year: seven on Mr. Estrada, three on Ms. Owen, and one on Mr. Pryor. Republican senators have voted to continue judicial nominee filibusters less than 3 percent of the time; by contrast, Democratic senators have voted for filibusters 65 percent of the time.
In January 1995, Democrats Tom Harkin of Iowa and Joseph Lieberman of Connecticut proposed reducing the votes needed to invoke cloture. Sen. Harkin opposed filibusters that "can totally stop legislation or nominations." Sen. Lieberman condemned "misused" filibusters intended to "thwart the will of the majority." The 10 current Democrats who supported the Harkin-Lieberman proposal, however, have nonetheless supported two of every three judicial nominee filibusters.