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Judicial Nominations
The Senate's procedural rules allow any single Senator to object to taking a vote on any given measure. Under such circumstances, the rules require 60 votes to invoke "cloture" and thereby overcome such an objection in order to proceed to a vote.
Throughout the history of our country, only one Presidential judicial nomination has ever been filibustered. This was President Lyndon Johnson's nomination of Associate Supreme Court Justice Abe Fortas to be elevated to Chief Justice. While Judge Fortas' nomination faced a filibuster, the fact was, that he faced a bipartisan filibuster because of the numerous ethical charges that were then pending against him. Ultimately, the Fortas nomination was withdrawn and he was forced to resign from the Supreme Court because of his ethical failings. Clearly, those circumstances are completely dissimilar to those of the nominees that have recently been filibustered in the Senate.
On May 23, a group of 14 Senators -- seven Republicans and seven Democrats -- struck a deal that prevents Majority Leader Frist from invoking the "constitutional option," a Senate rule change that would thwart Democratic efforts to filibuster judicial nominees. Under this agreement, three nominees were allowed an up-or-down vote. Those include Priscilla Owen, Janice Rogers Brown, and William Pryor. In addition, the signatories agreed that they would oppose attempts to filibuster future nominees except under "extraordinary circumstances."
While this agreement has brought a temporary resolution to the nomination process, Majority Leader Frist has publicly stated that he will not hesitate to invoke the "constitutional option" should the dynamic return to that of previous weeks.
I firmly believe that each of the President's nominees should be afforded a straight up-or-down vote. I do not think that any of us want to operate in an environment where federal judicial nominees must receive 60 votes in order to be confirmed. To that end I firmly support changing the Senate rules to require that a simple majority be necessary to confirm all judicial nominees, thus ending the continuous filibuster of them.
Congressional Research Service Issues Briefs
The Congressional Research Service (CRS) is part of the legislative branch of the federal government. CRS, which is a department of the Library of Congress, works exclusively as a nonpartisan analytical, research, and reference arm for Congress.
The following files are in PDF format. In order to view these files, you will need the Adobe Acrobat Reader installed on your PC. You can download the free Reader from the following website: http://www.adobe.com/products/acrobat/readstep.html
For more information on this issue, please view the following CRS reports:
Constitutionality of a Senate Filibuster of a Judicial Nomination
Evolution of the Senate's role in the Nomination and Confirmation Process: A Brief History.
More information on Senator Shelby's activities regarding judiciary affairs:
Chemical Weapons Disposal at Anniston
Department of Homeland Security
Disability and Military Retirement Benefits