Almost 11 years ago, the Supreme Court faced the same kind of ideological hinge point it confronts today.
In June 2005, Sandra Day O’Connor, after nearly 25 years as the key swing vote on many social issues, announced she was retiring, setting up a potentially brutal confirmation battle for her successor. Two months later, Chief Justice William H. Rehnquist died, creating what could’ve been an even more dire situation.
Instead, the next six months saw tough-but-fair hearings and two confirmations in relatively short order. The court never really lost its full allotment of nine justices. That’s largely because, a few months earlier, a bipartisan group of 14 rank-and-file senators seized control of the judicial wars from party leaders, steering the Senate away from constant brinkmanship on the federal courts.
No such rump caucus exists today, as the death of Justice Antonin Scalia has left the two parties in a daggers-drawn posture over replacing the staunch conservative with a liberal or even a moderate justice.
Some senators are looking back wistfully at last decade’s rank-and-file uprising.
“That suggests a road map, doesn’t it?” said Sen. Chris Coons (D-Del.), a relative newcomer who is exasperated by the ideological stalemate over replacing Scalia.
One of the most junior members of the Judiciary Committee, Coons is searching for like-minded senators who don’t have decades of scar tissue from previous judicial showdowns in a bid to try to replicate the work of the “Gang of 14” in 2005.
“People who haven’t spent 30 years fighting with each other and can recite chapter and verse every previous offense, every previous assault,” he said of his targets.
But the odds are stacked heavily against him because the current Senate bears almost no resemblance to the one in 2005.
Of the 14 senators who joined that rebellion then, just three remain in office: Susan Collins (R-Maine), Lindsey Graham (R-S.C.) and John McCain (R-Ariz.). The rest have either died, retired or weren’t reelected. And for the remaining “gang” members, the goodwill is mostly gone.
“I think the environment is too poisoned, the atmosphere is too poisoned, on all sides,” McCain said.
McCain said that he would only meet President Obama’s eventual Supreme Court nominee as a polite courtesy and that he was otherwise staunchly behind Senate Majority Leader Mitch McConnell’s (R-Ky.) call to leave Scalia’s seat vacant until the presidential race is decided.
“It would be pointless,” McCain said of meeting the nominee.
Graham has a similar view. “This is not the time to replace a Supreme Court justice, in an election year. It’s not consistent with the way the Senate has operated,” he said.
Former senator Ben Nelson (D-Neb.) is dismayed by the current state of affairs. No one has reached out to him to ask how he led the 2005 effort to pull the Senate out of its constitutional showdown over federal judges.
Back then, as Democrats mounted an unprecedented filibuster blockade of George W. Bush’s appellate court nominees, Republicans pushed for changing the rules to allow for confirmation on a simple majority vote. They wanted to deploy the “nuclear option,” as then-Sen. Trent Lott (R-Miss.) dubbed it, because they were going to change the rules on a party-line vote instead of the normal supermajority vote required to alter the rules.
Bill Frist (R-Tenn.), then the majority leader, and Minority Leader Harry M. Reid (D-Nev.) had fully dug in for the fight; the atmosphere was toxic, and nothing was getting accomplished.
Several senators began musing about a compromise, and one day Robert C. Byrd (D-W. Va.), the longest-serving senator in history, grabbed Nelson by the lapels.
“Governor, you’ve gotta do what you talked about,” Byrd told the former Nebraska governor.
“Well, senator, I’m new here. I don’t know how you put something like that together,” Nelson recalled telling Byrd, who died in 2010.
He went to work with Lott, McCain and others that spring. The group knew from the outset that Rehnquist, then 80, was ill, while O’Connor was 75 and Justice John Paul Stevens was 85.
“We need to do this, because we’ll end up with a constitutional crisis. Not just with the appellate court here, but maybe the Supreme Court,” Nelson said, describing the ethos of the moment.
The Senate was split 55 to 45 in favor of Republicans. So if they got six senators from each party, they would have 51 votes to thwart Frist’s “nuclear” bid but also 61 votes to clear the filibuster on Bush’s appellate court nominees.
They ended up with seven from each side, and they weren’t just centrists trying to make good politics back home. Some had stature that rivaled or exceeded the leaders. John Warner (R-Va.), a former Navy secretary and chairman of the Armed Services Committee, literally locked arms with Byrd, a former majority leader, to walk to McCain’s office for the final negotiations.
Lott, not formally part of the group, was the former majority leader who served as a freelance negotiator. Arlen Specter (Pa.), then a Republican chairing Judiciary, never declared how he’d vote, leaving the count at 50 votes against and 49 in favor of the rules change. If Specter said yes, Richard B. Cheney would have cast a tie-breaking vote as Bush’s vice president to give Frist his rules change.
Instead, Specter joined Lott in advising the 14 senators and helped seal the deal. Six of Bush’s nominees were quickly confirmed, two others withdrew and the “gang” agreed that only “extraordinary circumstances” would prompt a filibuster.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. faced tough hearings, but each was confirmed relatively easily. The Senate went another six years before the minority party successfully blocked a judicial nominee through a filibuster.
“I just think there was more of an environment of working together to achieve results which both sides aimed for,” McCain said of the 2005 era.
Now, the Senate has few big personalities. McConnell and Reid hold more power over what happens on the Senate floor than any set of leaders in a generation. After Republicans fillibustered some Obama nominees, Reid flipped his opposition to the “nuclear option” and in 2013 changed the rules on a party-line vote that allowed for simple majorities to confirm everyone except Supreme Court justices.
Of the 14 “gang” members, eight have been replaced by senators who are clearly more partisan. For example, Lincoln Chafee, then a moderate Republican, lost in 2006 to Sen. Sheldon Whitehouse (D-R.I.), one of the most outspoken liberals. Mark Pryor, a moderate Democrat, lost in 2014 to Sen. Tom Cotton (R-Ark.), a staunch conservative.
“Perhaps it reflects the change in times, or the shrinking of the center,” Collins said.
Coons recalls his first Judiciary Committee meeting in which the top senators traded charges dating back several decades. He’s one of 45 senators who have never been involved in a Supreme Court confirmation hearing, all with less than six years in office.
Those are his targets for what, he hopes, will be a bid to reprise what Nelson’s “gang” did.
“It was senators generally motivated by a concern about the health and functioning of the institution,” he said.