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Fight the Filibuster Campaign Talking Points 4/23/2003
By Thomas L. Jipping, J.D.
I. General Points on Judicial Nominee Filibusters
Senators may vote for or against any nominee for any reason, but they must vote.
The Senate rule requiring 60 votes to stop a filibuster is unconstitutional. The Constitution specifies five situations (such as ratifying treaties) requiring more than an ordinary majority, and this is not one of them.
The Senate has defeated only one judicial nominee through a filibuster; that was in 1968 and the filibuster was almost evenly bi-partisan.
- The Senate has taken "cloture votes" to end debate but those were to prevent, not to stop, a filibuster. Thirteen of the previous 14 judicial nominees on whom cloture votes were taken were later confirmed, including all Clinton nominees.
- Republican leaders opposed judicial nominee filibusters under President Clinton; their opposition to the Estrada filibuster is completely consistent.
- Sen. Trent Lott
(R-Mississippi), Majority Leader: "I think it would be a bad practice if we began to have filibusters on Federal judicial nominations." (Congressional Record, 9/16/99, p.S11013)
- Sen. Orrin Hatch
(R-Utah), Judiciary Committee Chairman: "I think it is a travesty if we ever start getting into a game of filibustering judges." (Congressional Record, 9/16/99, p.S11015)
- Democrat leaders opposed judicial nominee filibusters under President Clinton; their support for the Estrada filibuster is completely hypocritical.
- Sen. Patrick Leahy (D-Vermont), Judiciary Committee Ranking Member: "I would object and fight against any filibuster on a judge." (Congressional Record, 6/18/98, p.S6522)
- Sen. Edward Kennedy
(D-Massachusetts), Judiciary Committee Member: "Senators who feel strongly about the issue of fairness should vote for cloture, even if they intend to vote against the nomination itself." (Congressional Record, 6/21/95, p.S8807)
II. Specific Points on Filibuster Targets
A. Miguel Estrada
Senators may vote for or against Mr. Estrada for any reason, but they must vote.
- Senate Democrats say they do not know enough about Mr. Estrada, yet they rejected an offer for a second hearing.
1. Mr. Estrada's hearing
- Mr. Estrada appeared for more than six hours before the Senate Judiciary Committee on 9/26/02 and answered more than 100 questions
- By comparison, the three Clinton appointees to the same court were asked fewer than 50 questions combined.
- Senate Democrats waited 505 days to give Mr. Estrada a hearing.
- Only two committee Democrats asked additional questions in writing after the hearing, and only one Democrat in the entire Senate asked for a private meeting with Mr. Estrada.
- The only questions Mr. Estrada did not answer asked for his views on specific issues or legal precedents that would come before him as a judge.
Mr. Estrada told Sen. Charles Schumer (D-New York): "I am happy to try to answer any question that I think I can appropriately answer … consistent with the nature of the job that I would undertake" as a judge. That job requires a judge to be impartial.
- No judicial nominee may properly answer such questions
- The American Bar Association's ethics rules prohibit judicial nominees from making statements "that commit or appear to commit" them "with respect to cases, controversies or issues that are likely to come before the court."
- Clinton nominees refused to answer such questions.
- Appeals court judges must follow Supreme Court precedent, and all judges must put their personal views aside anyway; it was improper for Democrat senators to ask Mr. Estrada's personal views on Supreme Court precedents.
2. Mr. Estrada's memos
- Mr. Estrada was an assistant to the Solicitor General from 1992-97 and wrote memos analyzing cases the United States might appeal, or positions the U.S. might take; confidentiality is necessary for such work.
- The Senate has confirmed seven appeals court nominees who held this exact same position - assistant to the S.G. - without asking for their confidential memos.
- Only a client can give permission to disclose their lawyer's memos or work product; the "client" here is the United States and every living former S.G. (who represents the U.S.) opposes disclosing confidential memos.
- No senator disputes these former S.G.s' position that confidentiality is necessary for their office to function properly, but they demand the memos anyway.
- Demanding these memos is simply a fishing expedition, hoping to find something they can use to attack Mr. Estrada.
Democrats asked questions they knew could not be answered, demanded materials they knew could not be produced, asked no additional questions, refused an additional hearing, and now filibuster Mr. Estrada because they say they know nothing about him.
B. Priscilla Owen
Senators may vote for or against Justice Owen for any reason, but they must vote.
Senate Democrats are filibustering Miguel Estrada because they say they do not know much about him, yet they threaten to filibuster Justice Priscilla Owen even though they know everything about her; Democrats even criticized holding a second Judiciary Committee hearing for Justice Owen, saying it was unnecessary.
- Every argument raised by Justice Owen's critics relates to the merits of her nomination, not to whether a vote should occur at all.
- The judicial position to which Justice Owen has been nominated has been vacant since January 23, 1997, and has been labeled a "judicial emergency" by the judiciary's administrative office.
- The Constitution assigns the power to appoint judges to the president; the Senate has an important role in making sure that nominees are neither corrupt nor unqualified, but filibustering a qualified nominee undermines the Constitution's process.
- Republicans never filibustered one of President Bill Clinton's judicial nominees.
III. Action Items
Calls to Senate Offices
"We elected the senator to vote, one way or the other. We want to know where he stands and he should not be afraid to tell us. We hope the senator will support Mr. Estrada (or Justice Owen) but, even if he opposes the nomination, we want him to help break this filibuster. Vote yes, vote no, but vote."
Letter to the Editor on Estrada
(161 words)
Even the liberal American Bar Association unanimously found Miguel Estrada well qualified for the federal appeals court. In more than 700 days since his nomination, no one has raised a real argument against him.
At his September 2002 hearing, Mr. Estrada answered more than 100 questions, refusing only to discuss personal views on issues and precedents he would consider as a judge. Democrats never balked when President Clinton's nominees refused to answer the same kind of questions, and their double standard now is unfair and deplorable.
Democrat senators demand confidential memos Mr. Estrada wrote while working for the U.S. Solicitor General. Democrats never even asked for those memos when confirming other appeals court nominees who had held the very same position. Every living former Solicitor General says disclosing confidential material would harm that office. Democrats don't even try to dispute that; they just continue their unprecedented demand.
Senators can vote against Mr. Estrada for these or any other reasons. But they must vote.
Letter to the Editor on Owen
(161 words)
Even the liberal American Bar Association unanimously found Priscilla Owen well qualified for the federal appeals court. In her 2000 re-election to the Texas Supreme Court, Justice Owen received 84 percent of the vote, the endorsement of every major Texas newspaper, and no major opposition. She even returned unspent campaign funds to contributors.
A few leftist interest groups don't like a few of her decisions. Justice Owen voted with the majority in 80 percent of the cases involving a pregnant minor seeking an abortion without parental knowledge. Her critics look only at three cases in which Justice Owen dissented; the liberal Washington Post said her position even in these cases was not unreasonable. That's no reason to oppose such a well-qualified nominee.
Judges must apply the law, not follow an interest group's political agenda. Justice Owen's record shows that she will do that and deserves confirmation. Senators can vote against Justice Owen for any reason they choose, but they must vote.
Visits to Senators' Offices
Use any of the information above for visits; for more information, visit www.cwfa.org.
The response to any argument about either Miguel Estrada or Priscilla Owen should be that the senator may vote for or against any nominee for any reason, but he must vote.
UPDATE: Since this was originally written, Senate liberals have targeted two more of President Bush's judicial nominees for filibusters: William Pryor and Carolyn Kuhl. For more information, please see:
For our past E-Alerts on the filibusters, please see the following. Bear in mind, some of these are outdated; they are useful for the background information they contain on the nominees:
Past E-Alerts:
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