Primer: Judicial Nominees and the Filibuster


April 25, 2005 — -- A partisan showdown over judicial appointments is brewing on Capitol Hill, where Senate Democrats are threatening to filibuster several of President Bush's nominees to the federal bench. In return, Republicans are threatening to ban the filibuster, a time-worn tactic for delaying or obstructing legislation by making long speeches on the floor of the Senate.

Under the Constitution, the president's judicial nominees need a majority vote in the Senate to be confirmed. Democrats, now the minority party, say if they can't win by the numbers, they'll run their mouths to defeat the nominations by using the filibuster.

The filibuster invokes the right of senators to debate any matter indefinitely unless 60 senators vote to end the discussion -- the Democrats could, therefore, hold the floor until the congressional session runs out. This would leave the pending nominations dead and force the president to re-nominate the judges next term or find new nominees. The Democrats filibustered 10 of the president's nominees last session; seven were re-nominated during the current session.

Federal judges are immensely powerful -- all cases raising constitutional issues, including school prayer, abortion, and freedom of speech are heard before a single federal judge at the trial level and a panel of federal judges on appeal. All judges are expected to follow the law, not their personal convictions, but one can get a sense of how a judge thinks by looking at previous rulings as well as public writings and comments. Both Republicans and Democrats scour a nominee's background for evidence of bias.

Democrats contend the nominees at issue are radical conservatives whose views are to the right of the mainstream on issues such as abortion, the environment, and worker protection. Republicans argue that these nominees have outstanding records.

The Constitution gives lawmakers the power to make their own rules. In fact, there are only a small number of actual, written Senate rules. Most of the time, the Senate works by precedent set within those rules. Majority Leader Bill Frist, R-Tenn., has proposed a change in the way the Senate deals with judicial nominations.

Under a plan proposed on Thursday, Frist would let senators retain the right to filibuster, so long as a confirmation votes was taken after 100 hours of debate.

Senate Democratic leader Harry Reid says he's looking at Frist's offer.

In his first term, Bush nominated 52 judges to the U.S. Court of Appeals -- five did not receive a hearing. Of those 47 who received hearings, 35 have been confirmed, 10 were filibustered and two were either withdrawn or defeated.

In his second term, Bush nominated 12 judges to the U.S. Court of Appeals, 10 of whom were re-nominated after being filibustered last year.

To end a filibuster, 60 senators must vote to end it. There are 55 Republican senators.

The filibuster has been used historically by the minority party, which can't win with a vote count.

According to the Senate Historical Office, the record for the longest individual speech is held by the late Sen. Strom Thurmond of South Carolina, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. To keep the floor, he read some of his wife's recipes and passages from novels out loud.

ABC News' Ed O'Keefe contributed to this report.