emails of Ashley Kavanaugh’s that included, among others, the words “abortion,” “gun,” “gay,” “liberal,” and “Brett” and all of her email correspondence with her husband. It was a ridiculous request that violated personal privacy and had nothing to do with Kavanaugh’s qualifications. It was also costly. The town had to hire lawyers to dig through emails, ultimately turning up nothing more than a few newsletters Ashley had forwarded to her husband for proofreading.
Kavanaugh’s team of clerks was quickly disabused of the notion that the confirmation process would be dignified. The special-interest opposition was intense, the press coverage was crazy, and many Democrats would not even meet with him.
Laurence Tribe’s God Save This Honorable Court had helped to change the philosophy of confirmations in the 1980s. In the early years of the George W. Bush administration there was a major change in their procedure, and Tribe had a role in that as well.
It had to do with the filibuster, which is what happens when a vote to end debate, called cloture, does not pass. The Senate cannot hold a final vote on a nomination without either unanimous consent or a vote for cloture. Under Senate rules, a senator does not actually have to keep talking, like Jimmy Stewart in Mr. Smith Goes to Washington, to keep a filibuster going. It’s enough simply not to pass a cloture vote. Because sixty votes were needed for cloture, the minority party could block a majority-supported action without resorting to reading the phone book.
The filibuster had been part of the Senate’s legislative process since the early nineteenth century. But the cloture rule as a means to end debate came about only in 1917 and did not apply to nominations until 1949; in theory, then, debate on a nomination could have gone on forever. The Senate never took a cloture vote on a nominee until 1968, and no majority-supported nomination was defeated with a filibuster until 2003. Even Clarence Thomas, confirmed with only fifty-two votes and without support of the Senate Judiciary Committee, was not subjected to the sixty-vote threshold of a cloture vote. Filibustering judicial nominations simply wasn’t done.
After Bush’s election in 2000, the Senate Democratic leader, Tom Daschle, announced that his caucus would use “whatever means necessary” to defeat Bush’s nominations.45 When John Ashcroft, himself a former senator, was nominated to be attorney general, forty-two Democrats voted against him. Senator Chuck Schumer called it a “shot across the bow.”46 Daschle said he wanted to assemble enough votes to signal that a filibuster could have been waged, even though some who voted against Ashcroft nevertheless thought he deserved an up-or-down vote.
In April 2001, the Democrats held a retreat in Pennsylvania to discuss how to change the rules of the confirmation process to defeat Bush’s judicial nominations. Tribe spoke at the retreat, along with Professor Cass R. Sunstein of the University of Chicago Law School and Marcia D. Greenberger, the co-president of the National Women’s Law Center. They helped the Democrats come up with strategies for blocking qualified candidates who were not liberal, one of which was dramatically to change the use of the filibuster.47
The next month Bush made eleven nominations to appeals courts. They were never confirmed in that Congress. After the Democrats lost seats in the 2002 elections, they began forcing cloture votes, a tactic that some members were reluctant to pursue. Ten of Bush’s nominees endured twenty-one filibusters in that Congress.
Miguel Estrada, nominated to the D.C. Circuit, was the most prominent victim of the new strategy. A leaked Democratic Senate strategy memorandum revealed that liberal groups had met with Senate Democrats in 2001 and identified Estrada as “especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”48 Democrats could not allow Republicans to put the first Hispanic on the Supreme Court, so they filibustered Estrada seven times, eventually forcing him to withdraw.
Frustrated with the weaponization of Senate procedure, Republicans began talking about getting rid of the filibuster. But senatorial inertia took over when a bipartisan “Gang of Fourteen” senators brokered a deal to keep the filibuster option.49
They agreed to finally hold a vote on three of the filibustered judges—Janice Rogers Brown (D.C. Circuit), William Pryor (Eleventh Circuit), and Priscilla Owen (Fifth Circuit)—saving the filibuster for the remainder of that Congress for undefined “extraordinary circumstances.”50
The nomination of Samuel Alito to the Supreme Court in November 2005 tested the strength of the Gang of Fourteen alliance. He was widely