The Filibuster is Safe, But Is the American Worker?

The constitutional chaos known as the “nuclear option” was averted at the last possible minute Monday evening when a group of 7 moderate Democrats and 7 moderate Republicans in the Senate coalesced around a solution. The filibuster is safe, for now at least. While the greater harm to our democracy may have been averted, workers still have much to fear from the three judges whose nominations will now move forward: Priscilla Owen, Janice Rogers Brown, and Bill Pryor.

The suspense had gripped our nation’s capital for weeks now: would Senate Majority Leader Bill Frist have the votes in the Republican caucus to strip the Democratic minority of its ability to use the filibuster? Last week, the process was set in motion when the Republicans filed a motion to force a vote on Priscilla Owen’s nomination to the 5th Circuit. Since Owen’s nomination had previously been filibustered, if it was not allowed to move forward this time, the Republican majority was expected to move ahead with efforts to change the rules to limit the use of filibusters on judicial nominations.

Instead, the moderate middle coalesced around a proposal that would forestall the elimination of the filibuster for now. (See Washington Post article.) The seven moderate Democrats (Sens. Ben Nelson (NE), Robert Byrd (WV), Joseph Lieberman (CT), Daniel Inouye (HI), Ken Salazar (CO), Mary Landrieu, and Mark Pryor (AR) would agree to allow votes on Owen, Brown and Pryor, while the seven moderate Republicans (Sens. John McCain (AZ), Mike DeWine (OH), John Warner (VA), Lincoln Chafee (RI), Lindsey Graham (SC), Susan Collins (ME) and Olympia Snowe (ME) would refuse to support efforts to invoke the nuclear option. Since the Senate has been so divided along partisan lines, each seven votes is necessary for each party to accomplish its respective objectives, so this bipartisan agreement, so these senators could reach an agreement to avert the crisis, even without the support of their own parties. (See Memorandum of Understanding.)

Each side got part, but not all, of what it wanted, which of course, is the nature of a compromise. Democrats preserved their ability to filibuster in “extraordinary circumstances,” while Republicans got their votes on the most controversial nominees. And while other nominees were not explicitly part of the deal, it seems more likely now that they will get their vote. No one seems terribly happy about the outcome, although liberal groups such as People For the American Way (PFAW) and seemed happier than their conservative counterparts.

PFAW gushed in its announcement “First thing’s [sic] first: we defused the ‘nuclear option!'” MoveOn jubilantly announced: “The power grab has failed!” Not all liberal groups praised the solution, however: Nan Aron of the Alliance for Justice responded, “Is there anybody on our side who is happy?” and added “We are very disappointed with the decision to move these extremist nominees one step closer to confirmation.”

Meanwhile, James Dobson of Focus on the Family grumbled, “This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats…The rules that blocked conservative nominees remain in effect, and nothing of significance has changed.” (See Dobson statement.) Tony Perkins, head of the Family Research Council, talking about the seven Republicans who were part of the compromise: “There were a few defectors, a few sellouts and that’s troubling.” (See Washington Post article.)

As our allied organization NELA points out, “Although a crisis has been averted, we must remain steadfast in opposing nominees to the federal circuit courts of appeals and the Supreme Court who do not have a demonstrated commitment to upholding workers’ and civil rights.” For now, American workers in the 5th (Texas, Louisiana & Mississippi), 11th (Florida, Georgia & Alabama) and DC Circuits will most likely be stuck with nominees Priscilla Owen, Bill Pryor, and Janice Rogers Brown (although their nominations have not been voted upon yet, and each senator remains free to vote his or her conscience.) And given that no deal was reached upon other nominees, yet the filibuster is reserved for “extraordinary circumstances,” it remains to be seen whether the deal is simply a vehicle for expediting all of the remaining nominations, or whether Democrats have only delayed the ultimate showdown, which is likely to happen if — or as many think — when an objectionable Supreme Court nomination takes place.

While workplace issues generally haven’t been at the forefront of the judicial nominations debate, with votes soon to occur on Owen, Pryor and Brown, it’s not too late for workers to speak out about these nominees. Regardless of any deal, constituents’ voices are extremely important, and with these nominations foreshadowing a Supreme Court nomination debate that could take place within the next year, if not sooner, Senators have to believe that voters, especially those who work for a living and are not by and large major campaign donors, are paying attention.

More Information:

Workplace Fairness Action Center
Will the Senate Go Nuclear?

NELA Action Center
NELA Judicial Nominations Page
NELA Position Statements: Priscilla Owen; Janice Rogers Brown; William (Bill) Pryor

Alliance for Justice: Independent Judiciary
People For the American Way (PFAW)

News Articles:

New York Times: Deal Draws Criticism From Right and Left
Washington Post: Hard to Tell Winners From Losers in Filibuster; An Unwelcome Compromise
Christian Science Monitor: From Senate Strife, A Center Takes Hold

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.