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Gang of 14

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The Gang of 14 (sometimes called the Mod Squad, with "mod" standing for "moderate") was a term coined to describe the bipartisan group of moderate Senators who successfully negotiated a compromise to avoid the deployment of the so-called nuclear option over the organized use of the filibuster by Senate Democrats in opposition to judicial nominees in the U.S. Senate in early 2005. It consists of 7 Republicans and 7 Democrats led by Sens. Ben Nelson (D-Nebraska) and John McCain (R-Arizona). The informal group was active again in July 2005, attempting to advise Bush on the choice of a nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. On November 3, 2005, the group met to discuss the nomination of Samuel Alito to the high court, but came to no conclusions, noting that the hearing process has only just begun. On January 30, 2006, the members of the group unanimously supported a cloture vote in the Alito nomination, providing more than enough votes to prevent the filibuster.

The Gang of 14 made an agreement whereby the seven Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances"), and in turn the seven Republicans would break with Senate Majority Leader Bill Frist and the Republican leadership on voting for the "nuclear option." As the Republicans hold a five vote majority, the agreement of these Senators practically prevents the Republicans from winning a simple majority to change Senate rules, and prevents the Democrats from mustering the 41 votes necessary to sustain a filibuster. While thwarting the goals of their respective party leaderships [link], the group members were hailed as moderates who put aside severe partisanship to do what was best for the Senate.

The deal has been strongly criticized by both Democratic and Republican partisans. Nevertheless, the compromise precludes further filibusters or the nuclear option for as long as the Gang of 14 holds together.

The name may be loosely derived from the Gang of Four, a group of Communist Party officials who were accused of abuse of power in China during the 1970s.

Contents

Members

Republicans

Democrats

The compromise

Because of the split of the Senate – 55 Republicans, 44 Democrats and 1 Democrat-aligned independent – if six Senators from each party could reach an agreement, it was realized that these twelve could both forestall the nuclear option and force cloture on nominees. With a cloture vote scheduled on the nomination of Priscilla Owen – the opening move in firing the nuclear option – for Tuesday, May 24, 2005, and with Senate Majority Leader Bill Frist and Minority Leader Harry Reid having evidently given up all pretense of finding a compromise (each have been accused of having desired the nuclear showdown for their own political ends), the minds of traditionalists and moderates in both parties were focused on finding some alternative way out. In the end, seven Senators from each party got behind a compromise which stated, in essence, that Democratic filibusters would come to an end in "all but extraordinary circumstances," and the GOP would not use the nuclear option.

The text of the compromise is as follows: 

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS



We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority
Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among
the signatories, based upon mutual trust and confidence, related to pending and future
judicial nominations in the 109th Congress.



This memorandum is in two parts. Part I relates to the currently pending judicial nominees;
Part II relates to subsequent individual nominations to be made by the President and to be
acted upon by the Senate’s Judiciary Committee.



We have agreed to the following:



Part I: Commitments on Pending Judicial Nominations



A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial
nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla
Owen (5th Circuit).



B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on
the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).



Part II: Commitments for Future Nominations



A. Future Nominations. Signatories will exercise their responsibilities under the Advice and
Consent Clause of the United States Constitution in good faith. Nominees should be
filibustered only under extraordinary circumstances, and each signatory must use his or her own
discretion and judgment in determining whether such circumstances exist.



B. Rules Changes. In light of the spirit and continuing commitments made in this agreement,
we commit to oppose the rules changes in the 109th Congress, which we understand to be any
amendment to or interpretation of the Rules of the Senate that would force a vote on a
judicial nomination by means other than unanimous consent or Rule XXII.



We believe that, under Article II, Section 2, of the United States Constitution, the word
“Advice” speaks to consultation between the Senate and the President with regard to the
use of the President’s power to make nominations. We encourage the Executive branch of
government to consult with members of the Senate, both Democratic and Republican, prior
to submitting a judicial nomination to the Senate for consideration.



Such a return to the early practices of our government may well serve to reduce the rancor
that unfortunately accompanies the advice and consent process in the Senate.



We firmly believe this agreement is consistent with the traditions of the United States
Senate that we as Senators seek to uphold.

Results and possible results

As a result of the agreement, Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45. The other two nominees mentioned, William Myers and Henry Saad, have not yet been confirmed, and the compromise made no promise to invoke cloture on them, indicating that the Gang of Fourteen agreed that these judges met the "extraordinary circumstances" requirement for filibustering.

The immediate and proximate political result was the curtailing of Democratic filibusters and the short-term end to the "nuclear option" debate. Sen. Orrin Hatch has characterized this as "a truce, not a ceasefire", and the potential for resumption of hostilities is obvious: the compromise rules out Democratic Filibusters in "all but extraordinary circumstances", yet the day after the compromise was announced, Democratic Minority Leader Harry Reid provocatively announced in a speech on the Senate floor that in his view, the Democrats were already using the filibuster in only "extraordinary circumstances". Equally, a provocative attempt by Sen. Carl Levin to shut the door on the nuclear option by obtaining a ruling from the chair – at that moment, Senator John Sununu – that the filibuster had been yielded as constitutional by the compromise, failed; the Republican leadership, thus, retains the nuclear option. Thus, moderates on both sides have claimed victory, and partisans on both sides have claimed defeat.

The compromise was further tested by the confirmation battle over the nomination of Samuel Alito to the Supreme Court to fill the vacancy left by Sandra Day O'Connor's retirement. A number of Democratic senators attempted a filibuster; however, the entire Gang of 14 voted for cloture, which passed by 72 to 24 (with 60 "aye" votes needed to end the filibuster). Several members of the Gang of 14 then voted against confirming Alito, including Republican Lincoln Chafee.

For the time being, the forging of the compromise has tilted Senate power towards moderates; Senator Lindsey Graham has suggested that the shift of political center of gravity caused by the emergence of the Gang of 14 could be extended to finding a solution to an issue like the reform of Social Security; Democrats have pledged to block the reforms proposed by President Bush, and both Graham and Olympia Snowe have signalled their opposition to certain aspects of the President's reforms. Whether the remaining 5 Republicans would go along with such an extension is as yet unclear.

The filibuster revisited

In April of 2006, Senate Republicans began pushing for the confirmation of two controversial conservative court of appeals nominees who had not been included in the Gang of 14 deal of 2005, district court judge Terrence Boyle and White House aide Brett Kavanaugh [link]. Boyle had been first nominated to the Fourth Circuit in 2001 and Kavanaugh to the D.C. Circuit in 2003. Senate Democratic leader Harry Reid immediately expressed concern over both nominees [link] [link], threatening to possibly filibuster each one. On May 3, 2006, the seven Democratic members of the Gang of 14 wrote a letter to the Senate Judiciary Committee requesting a second hearing for Kavanaugh [link]. That request was granted the next day [link]. On Tuesday, May 9, Kavanaugh appeared before the Senate Judiciary Committee for his second hearing. Later that same day, the Gang of 14 met to discuss his nomination as well as the nomination of Boyle which had become embroiled in a debate concerning Boyle's failure to recuse himself in several cases. After the meeting, South Carolina senator Lindsay Graham declared that he saw no "extraordinary circumstances" concerning Kavanaugh's nomination. However, several Republican members of the "Gang" refused to address the status of Boyle. The Democratic members said they would request a second hearing for Boyle like they had done earlier for Kavanaugh [link]. On Thursday, May 11, Kavanaugh was voted out of committee on a party line vote of 10-8 [link]. Two weeks later on Thursday, May 25, cloture was invoked on Kavanaugh by a vote of 67-30 with all but two members of the Gang of 14 voting to end debate [link]. Senator Inouye voted against invoking cloture, and Senator Salazar did not vote. The next day, Kavanaugh was confirmed to the D.C. Circuit by a vote of 57-36 [link]. All of the Republicans and three of the Democrats (Byrd, Landrieu and Nelson) in the Gang voted for confirmation.

Before the Boyle nomination could be addressed, a controversy arose about the nomination of William "Jim" Haynes, the general counsel of the Department of Defense, to be an appellate judge on the Fourth Circuit. When it was revealed that Republican senator Graham might be holding up Haynes's nomination in committee [link] due to concerns about his participation in the formulation and implementation of the torture guidelines suggested by the Bybee memo, conservative leaders began a push to get Haynes confirmed [link]. Graham responded to his critics with a letter [link]. Eventually, Haynes was granted a second hearing like Kavanaugh had been before him. Two days after the July 11 hearing, the Gang met to discuss Haynes' nomination. Their initial response did not seem positive [link].

External links

In approximate chronological order:

 

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