Gang of 14

The Gang of 14 was a term coined to describe the bipartisan group of 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 (or constitutional option) over an organized use of the filibuster by Senate Democrats. The nickname is a pun on the so-called Gang of Four who were influential in the politics of the People's Republic of China during the Cultural Revolution.

The Democrats had been using the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush. The informal group consisted of seven Republicans and seven Democrats led by Sens. Ben Nelson (D-Nebraska) and John McCain (R-Arizona). It 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 uphold a change in the interpretation of 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 [ [http://www.cookpolitical.com/column/2004/052805.php Frist, Reid Lost When Gang of 14 Took Over] from the Cook Political Report ] 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, made the relevance of the group highly questionable in future conflicts involving judicial nominations.

Members

Republicans

*Lincoln Chafee of Rhode Island (lost re-election in 2006)
*Susan Collins of Maine
*Mike DeWine of Ohio (lost re-election in 2006)
*Lindsey Graham of South Carolina
*John McCain of Arizona
*Olympia Snowe of Maine
*John Warner of Virginia

Democrats

*Joe Lieberman of Connecticut
*Robert Byrd of West Virginia
*Ben Nelson of Nebraska
*Mary Landrieu of Louisiana
*Daniel Inouye of Hawaii
*Mark Pryor of Arkansas
*Ken Salazar of Colorado

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:

Quote|MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by MajorityLeader Frist and Democratic Leader Reid. This memorandum confirms an understanding amongthe signatories, based upon mutual trust and confidence, related to pending and futurejudicial 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 beacted 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 judicialnominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and PriscillaOwen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture onthe 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 andConsent Clause of the United States Constitution in good faith. Nominees should befilibustered only under extraordinary circumstances, and each signatory must use his or her owndiscretion 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 anyamendment to or interpretation of the Rules of the Senate that would force a vote on ajudicial 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 theuse of the President's power to make nominations. We encourage the Executive branch ofgovernment to consult with members of the Senate, both Democratic and Republican, priorto 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 rancorthat unfortunately accompanies the advice and consent process in the Senate.

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

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 two nominees who were not specifically guaranteed cloture in the agreement, William Myers and Henry Saad, both later withdrew. Myers of Idaho was opposed by the Democratic leadership because of the perceived anti-environmental bias of his work as the solicitor general of the United States Department of the Interior and as the deputy general counsel of the United States Department of Energy. Saad of Michigan, on the other hand, was opposed by his two Democratic homestate senators, Carl Levin and Debbie Stabenow, because he had angered Stabenow in September 2003 by sending out an e-mail critical of her participation in his original filibuster. In the e-mail, Saad wrote to a supporter about Stabenow, "This is the game they play. Pretend to do the right thing while abusing the system and undermining the constitutional process. Perhaps some day she will pay the price for her misconduct." Stabenow became aware of the e-mail when Saad accidentally sent it not only to the supporter but also to Stabenow's office. . [ [http://nationalreview.com/york/york200505130859.asp Harry Reid Steps Over the Line — Again] from National Review]

The immediate and proximate political result of the agreement was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Sen. Orrin Hatch at the time characterized the deal as "a truce, not a ceasefire", and the potential for a resumption of hostilities was obvious to everyone. The compromise purported to rule 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, retained the nuclear option. Consequently, moderates on both sides were able to claim victory, and partisans on both sides were able to avoid 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.

The filibuster revisited

In April 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. [ [http://influencepeddler.blogspot.com/2006/04/gang-of-14-to-be-tested.html The Gang of 14 to be Tested] the Influence Peddler blog] 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 [ [http://www.boston.com/news/nation/washington/articles/2006/05/02/reid_mulls_filibuster_of_judicial_nominees/ Reid mulls filibuster of judicial nominees] from the Boston Globe] [ [http://www.rnla.org/Blog/Reid5-2-06.pdf Micros ] ] , 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. [ [http://hotlineblog.nationaljournal.com/archives/2006/05/gang_of_14_spli.html Gang Of 14 Split On Kavanaugh?] ] That request was granted the next day. [ [http://www.examiner.com/a-101396~Kavanaugh_to_reappear_before_Senate_Judiciary_Committee.html Kavanaugh to reappear before Senate Judiciary Committee] from The Examiner] . 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 [ [http://www.confirmthem.com/node?page=31 Saturday Nomination Stuff] from ConfirmThem.com] . On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 [ [http://www.washingtonpost.com/wp-dyn/content/article/2006/05/11/AR2006051100202.html Kavanaugh Nomination Headed to Senate Vote] ] 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 [ [http://www.nationalreview.com/benchmemos/week_2005_05_08.asp Bench Memos] from National Review] . 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 [ [http://therealuglyamerican.com/2006/05/27/kavanaugh-confirmed-to-for-dc-circuit-court-of-appeals/ Kavanaugh Confirmed to for D.C. Circuit Court of Appeals] from TheRealUglyAmerican.com] . 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 [ [http://www.redstate.com/blogs/smagar/2007/jun/28/can_we_spare_lindsay_graham_he_fights Can we spare Lindsay Graham? He fights!] from Redstate.com] 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 [ [http://www.thebluestate.com/judiciary/index.html Administration playing dress-up with judicial nominee Haynes] from the TheBlueState.com] . Graham responded to his critics with a letter explaining his position on the nomination [ [http://www.andrewhyman.com/confirmthem/graham2.pdf] ] . 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.

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 [ [http://www.senate.gov/pagelayout/legislative/one_item_and_teasers/nom_rtn.htm NOMINATIONS FAILED/RETURNED] from the United States Senate] .

After the November 7, 2006 election in which Democrats picked up six additional Senate seats, President Bush again 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 nominees during the lame duck session of the 109th Congress. At the beginning of the new Congress in January 2008, President Bush did not renominate Boyle, Myers and Haynes in an attempt at reconciliation with the Democrats. [ [http://www.nytimes.com/2007/01/10/washington/10judges.html?hp&ex=1168491600&en=5c108b792ee44a94&ei=5094&partner=homepage Bush Drops Plans to Renominate 3 Judges] from the New York Times] .

With the Democrats in control of the 110th Congress, the role of the Gang of 14 was greatly diminished. As the new majority, the Democrats could easily block any judicial nominee they wished without resorting to the filibuster. Objectionable appellate nominees could be blocked in committee, and nominees to the Supreme Court could be voted down in the full Senate along party-lines.

References

External links

"In approximate chronological order:"
* [http://www.nationalreview.com/benchmemos/064026.asp National Review Online - Bench Memos - Republicans Who Dealed]
* [http://www.cnn.com/2005/POLITICS/05/23/filibuster.fight/ CNN - Senators compromise on filibusters]
* [http://www.npr.org/templates/story/story.php?storyId=4664385 National Public Radio - Senator Pryor on the 'Gang of 14' Filibuster Deal]
* [http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/05/24/filibuster24.DTL San Francisco Chronicle - Senate ends filibuster for judicial nominee]
* [http://www.cfif.org/htdocs/legislative_issues/federal_issues/hot_issues_in_congress/confirmation_watch/anger-management.htm Center for Individual Freedom - Confirmation Watch - Senate Sellout]
* [http://www.hillnews.com/thehill/export/TheHill/News/Frontpage/052505/social.html The Hill - Social security is next for Gang of Fourteen]
* [http://economistsview.typepad.com/economistsview/2005/05/social_security.html Economist's View - Social Security Reform, Gridlock, and the Gang of Fourteen]
* [http://www.gopusa.com/commentary/pweyrich/2005/pmw_05301.shtml GOPUSA - Commentary Corner - Constitutional Option: Gang of Fourteen - Won the Battle, Not the War]
* [http://www.nationalreview.com/mccarthy/mccarthy200506010758.asp National Review Online - The "Mainstream" Doesn't Run Through Main Street]
* [http://www.frc.org/get.cfm?i=WU05F08 Family Research Council - (Tony Perkins') Washington Update - The Gang of Fourteen Minutes]
* [http://www.renewamerica.us/analyses/050614hutchison.htm RenewAmerica - Issues analysis - A Senate showdown vs. a moderating compromise]
* [http://themoderatevoice.com/general/2918/senate-moderates-avert-polarizing-filibuster-showdown The Moderate Voice: Senate Moderates Avert Polarizing Filibuster Showdown]
* [http://www.cnn.com/2005/POLITICS/11/04/alito/index.html Bush disappointed by Alito hearings schedule]
* [http://www.nationalreview.com/comment/hatch200501120729.asp Crisis Mode - A fair and constitutional option to beat the filibuster game. By Senator Orrin G. Hatch]