The Base is Wrong About the Gang of 14

When conservatives lay out their long list of apostasies committed by John McCain, one of them is always his role in the Gang of 14, the 7 Democrats and 7 Republicans in the Senate who agreed to a judicial compromise in 2005. The deal that was struck eliminated the use of the "nuclear option" by the then-GOP-controlled Senate, and also limited the Democratic minority's ability to use the filibuster to block certain judicial nominees (at the time the deal was stuck, there were no pending Supreme Court nominations, only Appellate Court nominations were being held up).

To put it plainly, the critics of the deal are flat out wrong. Conservatives should thank John McCain and the other Senators who were part of the Gang of 14 for getting three Appeals Court nominees who had been held up, Janice Rogers Brown, William Pryor, and Priscilla Owen, approved quickly and Brett Kavanaugh approved a bit later, and for Samuel Alito making it onto the Supreme Court without a filibuster blocking his way. And they should thank John McCain for preserving for the Republican Party the use of the filibuster on judicial nominations that might be made by a Democratic President beginning in 2009 or later.

Yes.. of course, Congress can make it’s own rules about how to conduct business. I have NO PROBLEM with the use of the filibuster for legislative issues in the normal conduct of Senate business. It’s a GOOD thing..

But, the confirmation of judges is a special act, that is described in Article II, Section 2. For treaties, it is clearly spelled out that a 2/3’rds majority of the Senate is required. For ALL other confirmation duties... no such requirement is made, which implies that a majority is sufficient. All constitutional scholars agree on this point: When the founders wanted super-majorities to be required, they specified it.

Thus.. the Senate has NO right to require a “super-majority” for the confirmation of Judges. They DO have the right to waive completely Senate confirmation of lower level judges.. but, the do NOT have the right to require a 60% vote.

This is a vaguery that NEEDS to be cleared up and defined, once and for all. We were SO close to doing this.. until the Gang of 14 screwed it up...

I can see his point because we did get some good judges through the Senate as a result, but he fails to mention that there were also some very good judges who were specifically NOT included in the deal. One of them was Terence Boyle from my own state of North Carolina who would have made a wonderful judge for the 4th Circuit.

My problem with a compromise in this situation was that the Democrats were doing something that was not only blatantly unconstitutional, but also against the camaraderie that has always been characteristic of the Senate. Until Harry Reid became Senate Majority Leader, the filibuster had been reserved for legislation and was not used for judicial appointments.

I think why everyone is so upset with McCain is because he went behind both the President's and Bill Frist's backs to put together the deal that resulted in the Gang of 14. I have always felt that many of McCain's actions in the Senate were more for his own self-agrandizement than for the good of the country.

Thus.. the Senate has NO right to require a “super-majority” for the confirmation of Judges.....For treaties, it is clearly spelled out that a 2/3’rds majority of the Senate is required. For ALL other confirmation duties no such requirement is made, which implies that a majority is sufficient......When the founders wanted super-majorities to be required, they specified it.

True, and a 2/3 majority is NOT required for confirmation of appointments. But what you're missing is that a filibuster is nothing more than a protracted debate, and as such it is subject ONLY to Senate rules. The Constitution grants Congress the power, not a right, to make it's rules of procedure, and one of those rules is that a 3/5 majority is required to end debate. That rule was adopted in 1917, and the original version required the votes of 2/3 of the Senators who were present in the chamber at the time the vote was taken in order to end debate. That rule was modified in 1975 by a Democrat majority Senate, and it now only requires the votes of 3/5 of all duly elected and seated Senators to invoke cloture and end debate whether or not all the Senators are present in the chamber when the vote is taken.

To sum up my contention, by current Senate rules of procedure adopted under the powers granted solely to Congress by the Constitution, 60 aye votes are required to invoke cloture and end a protracted Senate debate, aka a filibuster, and the Constitution does not grant any court or other branch of government the power to change that rule. The one exception to the 3/5 majority rule is that a 2/3 majority is still required in order to end a debate that involves making any further changes to the cloture rule.

BTW, the Constitution does not and can not grant rights to the people or to any branch of government, it only grants powers to the government and protects certain rights of the people. Rights belong to the people, not government, and are inherent, inalienable, and are neither granted nor subject to revocation by any government or constitution.

I'm sure you know all that as well as I do, but someone reading our exchange of views may not and might wonder why we make a distinction between powers and rights.

Thanks.. Yes, I know the history of the filibuster rule. But, we have 200 years of precedent of the filibuster NOT being used for confirmation of judges. Well, except for a temporary application in one extreme case, I suppose...

I believe the issue is debatable, and needed to be resolved. I think it is abundantly clear what the Founders intended: They wanted to Senate to VOTE: Yea, or Nea. Heck, they thought the “advice and consent” was so informal, that it would likely be waived for judges in lower courts. I guess they underestimated the power of political gamesmanship.

I believe, the Senate has usurped a power that is NOT granted to them in the constitution. On legislative matters, they can set any hurdle they wish. But, confirmation of appointments involves their relationship with the another, co-equal branches of government: the establishment of the Judiciary, and the Chief Executive’s power of appointment. Because of this interaction, the Senate does NOT have the authority to impose stricter requirements. At least, that is my opinion. And, it is the opinion of most scholars I’ve read who dare to write about it.

Because of this interaction, the Senate does NOT have the authority to impose stricter requirements. At least, that is my opinion. And, it is the opinion of most scholars I’ve read who dare to write about it.

I agree with most of that with some reservations.

I agree that the authors didn't intend for a minority to be able to indefinitely frustrate the will of the majority, but neither did they intend for Congress to function on the basis of pure democracy. They intended to create a Republic governed by the people through their elected representatives, but not a pure democracy which IMHO is one of the least desirable forms of government.

The checks and balances built into our original Republican form of government have been altered over time more than I would have liked, for one example the 17th Amendment that took away the power of state legislatures to elect US Senators. I think that in the overall picture unlimited debate in Senate proceedings is beneficial in many instances and probably necessary to maintain a Republican form of government in which the will of a sizable minority of the people at large can't be easily steamrollered by a relatively small majority.

I think that in the overall picture unlimited debate in Senate proceedings is beneficial in many instances and probably necessary to maintain a Republican form of government in which the will of a sizable minority of the people at large can't be easily steamrollered by a relatively small majority.

Oh... I whole-heartedly agree. It's our only defense against the tyranny of majority-rule.

The problem is this, to function properly, appointments need to be confirmed or denied in a TIMELY manner. Logistically, it is a problem when scores of courts are closed because they have no confirmed judge. The Democrats in the Senate had begun to abuse this privilege (and, to be fair, so were the Republicans) and the result was a dysfunctional court system.

I believe... a majority vote is a sufficient "check" on the Presidential power of appointment. If the executive appoints a truly unqualified person, his own party statesmen in the Senate will (hopefully) do the right thing and stop it. Winning Parties, in my opinion, HAVE THE RIGHT to put their OWN people in appointive positions... barring some extraordinary disqualifier, which a required majority confirmation should prevent.

“And they should thank John McCain for preserving for the Republican Party the use of the filibuster on judicial nominations that might be made by a Democratic President beginning in 2009 or later.”

The naivety of that statement is astounding.
Anyone who thinks the Dems would hesitate for a second to bust the filibuster if they wanted to ram a judge through is delusional.

The gang of 14 did not “preserve” anything.

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