Seven Democrats and seven Republicans signed the “Memorandum of Understanding” detailing an agreement which averted a senatorial crisis in the Spring of 2005.

The crisis centered around the use of the filibuster rule by Democrats in the Senate to indefinitely stall judicial nominees from getting an up or down vote on the Senate floor.

The Republican party has 56 members in the U.S. Senate while the Democratic party has 43 and there is 1 independent in the 107the Congress. An agreement between 7 senators of both parties provided the necessary math for any judicial vote.

A filibuster is an open ended debate on the merits of any issue. "Cloture" places a time limit on debate and moves the issue to the Senate floor for a vote of all Senators. Cloture requires 60 votes. By using the filibuster to block judicial nominees from attaining a floor vote, the Democrats have essentially required a "super-majority" of 60 votes to confirm a nominee, rather than a simple majority of 51, thus retaining an effective veto over nominees that they view unfavorably.

With this tactic successfully used to thwart certain judicial nominees of the Bush Presidency from gaining an up or down vote for years in some cases, Senate Republicans threatened a parliamentary procedure that would remove the filibuster rule for judicial nominations. In retaliation for removing a long held and time honored protection of minority party rights, the Democrats threatened to grind all Senate business to a halt. A constitutional crisis hung over the capitol for months in early 2005.

The "gang of 14", organized by Senator John McCain bound themselves by an agreement to end the crisis, whereby the seven Democrats would vote in favor of cloture for future nominees except in "extraordinary circumstances", allowing each signatory to decide if such circumstances exist. If 56 Republicans were in agreement to end a filibuster, the 7 additional Democratic votes would equal 63 votes, and be enough for cloture, ending debate and allowing a vote. In exchange, the seven Republicans agreed to oppose any rule change in the Senate that would end the filibuster rule for judicial nominees. The total votes of 43 Democrats, 1 Independent (who usually votes Democratic), and 7 Republicans is 51 votes, enough to defeat any attempt at a rule change.

The Memorandum of Understanding also ended filibuster on 3 of 5 nominees who had been thwarted from receiving consideration on the Senate floor through this tactic: Janice Rogers Brown, William Pryor, and Priscilla Owen. All were subsequently confirmed by the Senate. No agreement for cloture was made for two other nominees, William Myers, and Henry Saad.

Signatories of the “Memorandum of Understanding”

John McCain (R) AZ
Lindsey Graham (R) SC
Mike DeWine (R) OH
Olympia Snowe (R) ME
Susan Collins (R) ME
John Warner (R) VA
Lincoln Chafee (R) RI

Ben Nelson (D) NE
Mark Pryor (D) AR
Mary Landrieu (D) LA
Ken Salazar (D) CO
Robert Byrd (D) WV
Joseph Lieberman (D) CT
Daniel Inouye (D) HI

Rick David writes for http://www.Legal-News.Info. A copy of the Memorandum of Understanding may be downloaded.

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