Gang of 14

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The Gang of 14 was a term coined to describe the bipartisan group of moderate Senators in the 109th United States Congress who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option over an organized use of the filibuster by Senate Democrats to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush. It consisted of 7 Republicans and 7 Democrats led by Sens. Ben Nelson (D-Nebraska) and John McCain (R-Arizona). The informal group became active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. On November 3, 2005, the group met to discuss the nomination of Samuel Alito to the high court, but came to no conclusions, noting that the hearing process had only just begun in his case. On January 30, 2006, the members of the group unanimously supported a cloture vote in the Alito nomination, providing more than enough votes to prevent a filibuster.

The Gang of 14 signed an agreement, pertaining only to the 109th Congress, whereby the seven Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances"), and in turn the seven Republicans would break with Bill Frist and the Republican leadership on voting for the "nuclear option." As the Republicans held a five vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented the Republicans from winning a simple majority to change Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships [1], the group members were hailed as moderates who put aside severe partisanship to do what was best for the Senate.

Although strongly criticized by both Democratic and Republican partisans at the time, the compromise was successful in precluding further judicial filibusters or the use of the nuclear option during the rest of the 109th Congress. As noted before, the Gang of 14 deal was instrumental in permitting Supreme Court nominee Samuel Alito an up-or-down vote, as his vote for confirmation (58 for to 42 against) would not have been adequate to overcome a party-line filibuster (i.e. did not equal or exceed 60 votes). The 2006 elections, however, saw Republican members Lincoln Chafee (R-Rhode Island) and Mike DeWine (R-Ohio) replaced by Democrats Sheldon Whitehouse and Sherrod Brown, respectively. Tolerance for Bush's judicial nominees was among the criticism the Democratic winners leveled against their incumbent Republican opponents, and the elections as a whole handed control of the Senate to the Democrats. This change in the Senate membership for the 110th Congress, in combination with the agreement's expiration in December, 2006, makes the future of the group highly questionable.

Contents

[edit] Members

[edit] Republicans

[edit] Democrats

Gang of 14 (in the United States Senate)
Republicans: McCain • Graham • Warner • Snowe • Collins • DeWine • Chafee
Democrats: Lieberman • Byrd • Nelson • Landrieu • Inouye • Pryor • Salazar

[edit] The compromise

Because of the split of the Senate – 55 Republicans, 44 Democrats and 1 Independent – if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the nuclear option and force cloture on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen – the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist and Minority Leader Harry Reid having evidently given up all pretense of finding a compromise (each have been accused of having desired the nuclear showdown for their own political ends), the minds of traditionalists and moderates in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.

The text of the compromise was as follows:

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority
Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among
the signatories, based upon mutual trust and confidence, related to pending and future
judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees;
Part II relates to subsequent individual nominations to be made by the President and to be
acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial
nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla
Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on
the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and
Consent Clause of the United States Constitution in good faith. Nominees should be
filibustered only under extraordinary circumstances, and each signatory must use his or her own
discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement,
we commit to oppose the rules changes in the 109th Congress, which we understand to be any
amendment to or interpretation of the Rules of the Senate that would force a vote on a
judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word
“Advice” speaks to consultation between the Senate and the President with regard to the
use of the President’s power to make nominations. We encourage the Executive branch of
government to consult with members of the Senate, both Democratic and Republican, prior
to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor
that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States
Senate that we as Senators seek to uphold.

[edit] Initial results

As a result of the agreement, Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45. The other two nominees who were mentioned in the agreement, William Myers and Henry Saad, both later withdrew.

The immediate and proximate political result was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Sen. Orrin Hatch has characterized this as "a truce, not a ceasefire", and the potential for resumption of hostilities is obvious: the compromise rules out Democratic Filibusters in "all but extraordinary circumstances", yet the day after the compromise was announced, Democratic Minority Leader Harry Reid provocatively announced in a speech on the Senate floor that in his view, the Democrats were already using the filibuster in only "extraordinary circumstances". Equally, a provocative attempt by Sen. Carl Levin to shut the door on the nuclear option by obtaining a ruling from the chair – at that moment, Senator John E. Sununu – that the filibuster had been yielded as constitutional by the compromise, failed; the Republican leadership, thus, retains the nuclear option. Thus, moderates on both sides have claimed victory, and partisans on both sides have claimed defeat.

The compromise was further tested by the confirmation battle over the nomination of Samuel Alito to the Supreme Court to fill the vacancy left by Sandra Day O'Connor's retirement. A number of Democratic senators attempted a filibuster; however, the entire Gang of 14 voted for cloture, which passed by 72 to 24 (with 60 "aye" votes needed to end the filibuster). Several members of the Gang of 14 then voted against confirming Alito, including Republican Lincoln Chafee.

[edit] The filibuster revisited

In April of 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 [2]. 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 [3] [4], 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 [5]. That request was granted the next day [6]. 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 Lindsay 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 [7]. On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 [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 [9]. 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 [10]. 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 [11] 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 [12]. Graham responded to his critics with a letter explaining his position on the nomination [13]. 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 [14].

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 Haynes, Boyle and Myers 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 [15].

On November 7, 2006, the Democrats were able to retake control of the Senate by a 51-49 majority. Despite this fact, President Bush soon after renominated the six candidates whose nominations had been sent back to him in September. The judiciary committee chairman, Senator Specter, however, said that he would not process these controversial nominees during the lame duck session of the 109th Congress [16]. At the beginning of the 110th Congress, Boyle, Myers and Haynes all withdrew their nominations [17].

Since the Democrats now control the 110th Congress, the need for the Gang of 14 has been greatly diminished. As the new majority, the Democrats can easily block any conservative judicial nominee they wish without resorting to the filibuster. Conservative appellate nominees can be blocked in committee, and conservative nominees to the Supreme Court can be voted down in the full Senate.


[edit] External links

In approximate chronological order:

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