Order Code RL31948
Report for Congress
Received through the CRS Web
Evolution of the Senate’s Role in the Nomination
and Confirmation Process: A Brief History
June 5, 2003
Betsy Palmer
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Evolution of the Senate’s Role in the Nomination and
Confirmation Process: A Brief History
Summary
Article II, Section 2 of the Constitution states that the President “shall nominate,
and by and with the Advise and Consent of the Senate, shall appoint Ambassadors,
other Public Ministers and Counsels, Judges of the Supreme Court, and all Other
Officers of the United States, whose appointments are not herein otherwise provided
for, and which shall be established by law…”
Exactly what the phrase “advise and consent” means in terms of distribution of
power between the legislative and executive branches has been disputed almost since
the beginning of the Republic. While some drafters of the Constitution believed the
Senate’s role would be minimal, others said the Senate would play a large role.
The role the Senate has played in the nomination process has depended, in part,
upon the relationship between the President and the Senate. Nonetheless, while there
have been many controversies over nominations, the vast majority of nominees
eventually make it through the process and are confirmed.
Over time, the Senate has developed a series of procedures to deal with the
concerns of its Members on nominations. First is the custom of senatorial courtesy,
whereby Senators from the same party as the President might influence a nomination
or kill it by objecting to it. This tradition has not always been absolute, but it has
allowed Senators to play a fairly large role, particularly in the selection of nominees
for district court seats within a Senator’s home state.
For judicial nominations, the Judiciary Committee has developed a tradition of
“blue slips,” a document used to get a home-state Senator’s opinion on a judicial
nomination. The chair of the committee determines how much weight to give a
Senator’s objection to a judicial nominee.
Other procedures that Senators have used to express their position on a
nomination include holds, an informal procedure that can allow a single Senator to
block action on a nomination (or legislation), and filibusters, extended debate that
can block an up-or-down vote on a nomination (or legislation). Both procedures
have been used to delay or block action on nominations.
Contents
Senatorial Courtesy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Blue Slips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
“Holds” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Filibuster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Evolution of the Senate’s Role in the
Nomination and Confirmation Process:
A Brief History
Article II, Section 2 of the Constitution states that the President “shall nominate,
and by and with the Advise and Consent of the Senate, shall appoint Ambassadors,
other Public Ministers and Counsels, Judges of the Supreme Court, and all Other
Officers of the United States, whose appointments are not herein otherwise provided
for, and which shall be established by law…”
The nomination clause was one of the last things agreed to by the Constitutional
Convention, and the phrase setting up the process for the nomination and
confirmation of federal officials, members of the Supreme Court, and others, clearly
meant different things to different framers of the Constitution and those who have
followed.
The participation of both the President and the Senate in the process was a
compromise between two factions at the Convention who were concerned about the
allocation of power. On the one side were men such as Elbridge Gerry of
Massachusetts and Benjamin Franklin of Pennsylvania who were most worried about
vesting too much power in the hands of a single individual. Franklin said that he was
concerned that “The Executive will always be increasing, here as elsewhere, til it end
in Monarchy.”1
Their counterparts, men like James Madison of Virginia, James Wilson of
Pennsylvania, and Alexander Hamilton of New York, wanted a strong executive who
would have ultimate responsibility for choosing members of his administration, and
who would not be as indebted to factions as they believed Senators might. “Good
laws are of no effect without a good Executive; and there can be no good Executive
without a responsible appointment of officers to execute,” said Wilson during the
convention debates. “Responsibility is in a manner destroyed by such an agency of
the Senate.”2
During the course of the debate and the many drafts of the Constitution, the
power to nominate flowed from the President to the Senate and back. The final
1 James Madison, The Debates in the Federal Convention of 1787 Which Framed the
Constitution of the United States of America (Westport: Greenwood Press, 1920), p. 55.
2 Madison, The Debates in the Federal Convention of 1787, p. 528.
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version of the phrase, was defeated twice during the Convention before it was
adopted on September 7, 1787.3
Hamilton believed that the clause gave the Senate a negative power, that of
withholding its approval, which members would use only infrequently.
It will be the office of the President to nominate, and with the advice and consent
of the Senate to appoint. There will, of course, be no exertion of choice on the
part of the Senators. They may defeat one choice of the Executive and oblige
him to make another; but they cannot themselves choose – they can only ratify
or reject the choice of the President.4
John Adams, however, thought the Senate would play a far bigger role. In a
letter to Thomas Jefferson in 1787, Adams wrote that:
You are apprehensive of monarchy, I of aristocracy. I would therefore, have
given more power to the president, and less to the senate. The nomination and
appointment to all offices I would have given to the President, assisted only by
a privy council of his own creation; but not a vote or voice would I have given
the Senate or any senator unless he were of the privy council. Faction and
distraction are the sure and certain consequences of giving to a senate a vote on
the distribution of offices. 5
With such varied interpretations of the meaning of the phrase at its creation, it
is no wonder that the proper role of the Senate in the nomination and confirmation
process has been much disputed ever since. “While the Appointments Clause clearly
vests in the president the power to identify individuals he wishes to place in
confirmable offices,” wrote political scientist Michael J. Gerhardt, “the Senate’s
official functions or duties in the appointments process are not so clear.”6
The Senate has played a large role in the process during some administrations
and a lesser role in others. Some Presidents, such as Thomas Jefferson, were able to
both win confirmation of most of their nominees while largely retaining control over
the choice of nominee. Others, such as President Abraham Lincoln, decided to
clearly share the power with the Senate, retaining enough influence over the positions
to reap the rewards of patronage while giving the Senate enough authority to prevent
many confirmation fights. Some Presidents, such as John Tyler, spent most of their
tenure losing battle after battle to the Senate over confirmations. 7
3 Joseph P. Harris, The Advice and Consent of the Senate (Berkeley: University of California
Press, 1953), p. 24.
4 Benjamin Fletcher Wright, ed., The Federalist (Cambridge: The Belknap Press of Harvard
University Press, 1966), p. 434.
5 Harris, The Advice and Consent of the Senate, p. 29.
6 Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical
Analysis (Durham, NC: Duke University Press, 2000), p. 135.
7 Harris, The Advice and Consent of the Senate, pp. 46, 66, 71.
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While there is much attention paid to those who did not win confirmation by the
Senate, most nominees do make it through. “For many a presidential appointee, the
Senate must loom like an institutional black hole–an abyss that engulfs even the most
luminous nominee. That impression is, in fact, mistaken,” wrote Sara A. Binder.
“Most presidential nominees emerge from the Senate confirmation process and are
eventually confirmed.”8
Traditionally, the Senate has exerted the most influence over the appointment
of federal judges, members of the Supreme Court, and independent agencies. The
Senate has usually given a President wider latitude in selecting members of his
Cabinet. “Generally, the Senate defers far more to a president’s nominees to
executive offices than to his nominees to judicial offices, particularly to the Supreme
Court,” according to Gerhardt.9
Since 1789, of the 152 people nominated to the Supreme Court, 112 were
confirmed and served. Seven of the remaining 40 were confirmed but refused the
position, one died before he could take office, and 32 nominations were not
confirmed.10
During the same time period, the Senate failed to confirm 15 Cabinet nominees
out of the hundreds who have been nominated, the last being the nomination of
former Senator John G. Tower (R-TX) to be Secretary of Defense in 1989.11
Over time, the Senate has developed or adapted practices to deal with the
nomination and confirmation process, none of which are explicitly contained in
Senate rules but all of which have been adhered to and recognized by the chamber
at one time or another. First, there developed the tradition of “senatorial courtesy,”
by which Senators could block confirmation of appointment of individuals from their
home states. Along the same lines is the “blue slip,” a tradition emanating from the
Judiciary Committee, which can allow a home-state Senator to block a judicial
nomination. Also, Senators have used the informal tradition of “holds” to prevent
or delay the Senate from acting on a nomination. Senators also have used the tool of
a filibuster, or extended debate, to delay or prevent a nominee from being confirmed.
There are other tools that the Senate has used less frequently, such as changing
the qualifications needed to do a job or doing away with a position entirely. Some
scholars have suggested that Congress deliberately reduced the number of positions
on the Supreme Court to prevent President Andrew Johnson from winning
confirmation of his nomination of Henry Stanbery to be an associate justice. No
mention was made of this purpose during the debate on the law which shrank the
8 Sara A. Binder, “The Senate as a Black Hole: Lessons Learned from the Judicial
Appointment Experience,” The Brookings Review, vol. 19 (Washington, Spring 2001) p. 37.
9 Gerhardt, The Federal Appointments Process, p. 162.
10 CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2001, by Henry
B. Hogue.
11 CRS Report 89-460, Cabinet and Other High Level Nominations that Failed to be
Confirmed, 1789-1989 (no longer available; for more information, contact Betsy Palmer.)
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court to six members from eight, but the size of the court was increased back to eight
within two months of a new President taking office.12
Finally, it is within the discretion of the chair of a committee whether to hold
a hearing on a nomination. One of the key ways a nomination dies is with no public
action. In 1997, President Clinton withdrew the nomination of former Massachusetts
Governor William Weld to be ambassador to Mexico after Senator Jesse Helms (R-
NC), chairman of the Senate Foreign Relations Committee, refused to hold a hearing
on the nomination.13
The development of these practices is in keeping with what some Senators
believe is the proper role of the Senate in the nomination and confirmation process.
Then-Senate Majority Leader George Mitchell (D-ME) said in 1992:
The American Constitution does not assign different weights to the President’s
nominating power and the Senate’s decision as to whether it shall ‘advise and
consent’ to the confirmation of nominations. Instead, it establishes a process
whereby the principal positions in our government can only be filled when the
President and the Senate act jointly. Thus, from the time of our Founders, the
Senate has been a vital partner in the process of evaluating candidates for service
in high government positions.14
Senator Robert P. Griffin (R-MI) noted in 1968 that, early in its history, the
Senate rejected President George Washington’s nomination of John Rutledge to be
Chief Justice of the Supreme Court. And, he continued:
That action in 1795 said to the President then in office and to future Presidents:
‘Don’t expect the Senate to be a rubberstamp. We have an independent coequal
responsibility in the appointing process; and we intend to exercise that
responsibility, as those who drafted the Constitution so clearly intended.’15
But Senate Majority Leader Mike Mansfield (D-MT), during the same 1968
debate, urged Senators to allow a vote on a Supreme Court nomination:
Clearly then, our responsibility is merely to evaluate the qualifications of the
nominee and to record our pleasure or displeasure; to give our advice and
consent or our advice and dissent.16
12 CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2001.
13 Donna Cassata, “Weld Blows Bitter Kisses As Curtain Comes Down,” CQ Weekly, vol.
55, Sept. 20, 1997, p. 2240.
14 Sen. George Mitchell, “Visit to the Senate by Members of the British House of
Commons,” remarks in Senate, Congressional Record, vol. 138, part 1 (Feb. 4, 1992), p. S
892.
15 Sen. Robert Griffin, “Supreme Court of the United States,” Congressional Record, vol.
114, part 22 (Oct.1, 1968), p. 28929.
16 Sen. Mike Mansfield, “Supreme Court of the United States,” Congressional Record, vol.
114, part 22 (Oct. 1, 1968), p. 28931.
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In characterizing Senate practice, political scientist Gerhardt noted, “The
combination of the means available to individual senators to delay nominations,
including but not limited to indefinite holds, filibusters, and special
procedures…provides individual senators with substantial means to impede a
president’s nominating authority.”17
Senatorial Courtesy
Three months into the first Senate session, Senators rebuffed President George
Washington on his nomination of Benjamin Fishbourn to be a naval officer of the
Port of Savannah, Georgia. Senators had no objection to the individual Washington
had selected; rather, they were responding to the two Senators from Georgia, who
had wanted to give the job to someone else. After Fishbourn was rejected,
Washington submitted the individual preferred by the Georgia Senators, who was
promptly confirmed.18
That was the first example of something that has come to be called “senatorial
courtesy.” This unwritten tradition has meant that Senators from the home state of
a nominee and also of the party of the President can block a nomination to an office
within their state merely by objecting to it. Senators have also used the concept of
“courtesy” to block a nominee of a President from another party, if the concerned
Senator was in the majority in the chamber.19 And, the objections of a Senator from
the minority party have also stopped nominations on numerous occasions.20
Though an unwritten tradition, senatorial courtesy has been honored, to some
degree or another, by most Presidents. “Every president since Madison has paid at
least lip service to senatorial courtesy,” wrote Gerhardt. “Much more often than not,
presidents have paid dearly for ignoring or failing to give adequate respect to
senatorial courtesy.”21
The strength of the tradition comes from the idea that courtesy means one
Senator will honor the objections of another to a nomination in the first Senator’s
home state:
‘The courtesy of the Senate’ soon became a cherished usage. In its general
application this fair phrase has come to signify deference, not to the President
nor the public interest, but to the wishes of one’s colleagues – a courtesy of the
Senate, for the Senate and by the Senate. In general practice this understanding
or gentleman’s agreement has seemed to reduce to this: Nominations from a
17 Gerhardt, The Federal Appointments Process, p. 143.
18 George H. Haynes, Senate of the United States, Its History and Precedent, (Boston:
Houghton Mifflin Co., 1938), p. 737.
19 Senatorial courtesy is also used in another way, to explain the deference Members of the
Senate usually show when a Senator is nominated by a President for an executive or judicial
branch office. Typically, these kinds of nominations have been readily confirmed.
20 Harris, The Advice and Consent of the Senate, p. 224.
21 Gerhardt, The Federal Appointments Process, p. 145.
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given state are not to be confirmed unless they have received the approval of the
Senators of the President’s party from that state, other Senators following their
lead in the attitude they take toward such nominations. 22
Senators can invoke senatorial courtesy at a hearing or on the floor of the
Senate. Historically, a Senator has stood on the floor of the chamber and said that
the nomination was “personally obnoxious” to him. Frequently, that was sufficient
to kill the nomination. President Franklin Delano Roosevelt nominated Floyd H.
Roberts to be a district judge in Virginia in 1939. He did so even though the state’s
two Senators opposed the nomination. During Judiciary Committee debate on the
nomination, Senator Harry F. Byrd (D-VA) said:
It is my sincere and honest conviction that this nomination was made for the
purpose of being personally offensive to the Virginia Senators, and it is
personally offensive to the Virginia Senators, and is personally obnoxious to me,
as well as to my colleague.23
The nomination was rejected on the Senate floor by a vote of 9-72.24
There has been disagreement within the Senate about whether or not a Senator
needs to state the grounds for an objection. During a 1934 debate on the nomination
of Daniel D. Moore to be collector of internal revenue in Louisiana, Senator Huey
Long said: “I first state to the Senate that this nomination is offensive to me
personally.” Long continued:
I have never held the duty to be imposed upon any Member of the Senate to
justify his reasons for stating that a nomination was personally obnoxious to him.
I have held, as has a been the majority of thought in this body, that no Member
of the Senate was called upon to justify his statement that a nominee was
personally objectionable to him, but that when a state sent its ambassadors to the
Senate, under the great doctrine of states’ rights which my part of the country has
held and upheld from the time the memory of man runneth not to the contrary;
no Senator would have to present anything except his own objection, and his own
proposal that a nomination should not be confirmed by the Senate.25
Nevertheless, Long went on to state his reasons in opposition to Moore. Though
the Senate first confirmed Moore, Senators then reconsidered the vote and ordered
the nomination recommitted to committee. Subsequently, the committee reported
the nomination again, but Moore was never confirmed.26
The tradition of senatorial courtesy has not, however, been absolute. In 1938,
Senator Rush D. Holt of West Virginia objected to the nomination of F. Roy Yoke
22 Haynes, Senate of the United States, Its History and Precedent, p. 740.
23 Sen. Alexander Wiley, “Memo on Senatorial Courtesy,” Congressional Record, vol. 93,
part 7 (July 1, 1947), p. 7989.
24 Ibid., p. 7989.
25 Ibid., p. 7987.
26 Ibid., p. 7987.
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to be a collector of internal revenue in West Virginia. But, the Senate confirmed him
over Holt’s objections.27
Still, the courtesy tradition became so ingrained with judicial nominations that
Senator Robert P. Griffin wrote about the practice in 1969: “It is a fact, though
sometimes deplored by political scientists, that judges of the lower federal courts are
actually ‘nominated’ by Senators while the President exercises nothing more than a
veto authority.”28
In 2003, Senator Orrin Hatch noted that the custom of senatorial courtesy
continues to be followed. Hatch, who was chairman of the Senate Judiciary
Committee during the last six years of the presidency of Bill Clinton, was explaining
what had happened to judges nominated by Clinton who were not confirmed.
“Seventeen of those lacked home state support, which often resulted from the White
House’s failure to consult with home state senators,” Hatch said. “There was no way
to confirm those nominations without completely ignoring the senatorial courtesy we
afford to home state Senators in the nominations process.” 29
The objections Hatch referred to were made before the nomination ever made
it to the floor for a vote — Senators no longer stand on the floor and declare
candidates to be “personally obnoxious.”
The role of courtesy has strengthened the hand of individual Senators in the
process, according to Gerhardt. “There is a rich history of individual senators who
have been successful, either by manipulating Senate rules or by building coalitions,
at thwarting or delaying nominations in situations in which the nominating president
failed to consult with them before making nominations (or failed to accept their
recommendations) for offices in the senators’ field of interest or home states.”30
Blue Slips
One way in which senatorial courtesy has manifested itself is something called
the “blue slip.”31 This is a device used by the Senate Judiciary Committee to
communicate with the home-state Senators about a nomination to the U.S. courts of
27 Haynes, Senate of the United States, Its History and Precedent, p. 742.
28 Sen. Robert P. Griffin, in the April 1969 issue of Prospectus, a Journal of Law
Reform, University of Michigan Law School as cited in the Congressional Record,
vol., 115, part 9 (May 14, 1969), p. 12608.
29 Sen. Orrin Hatch, “Estrada Nomination,” Congressional Record, daily edition, Mar. 3,
2003, p. 3001.
30 Gerhardt, The Federal Appointments Process, p. 151.
31 In the House, the concept of blue-slipping refers to the act of returning to the Senate a
measure that the House believes has violated a clause of the Constitution requiring that all
revenue raising measures originate in the House. For more information, see CRS RS21236,
Blue Slipping: The Origination Clause in the House of Representatives, by James V.
Saturno.
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appeal or district courts, or to be a U.S. marshal or U.S. attorney. When a nominee
is referred to the committee, the committee sends a letter (typically on light blue
paper) asking the two home-state Senators to take a position on the nomination —
either approve or disapprove. The Senators check off the appropriate box on the
sheet — either approve or disapprove — and return the paper to the Judiciary
Committee.
The blue slip process is used only by the Senate Judiciary Committee — no
other Senate committee uses it for other kinds of nominations. The practice of using
blue slips dates back to at least 1917.32 Since mid-2001, the status of blue slips for
each judge nominated have been publicly available on the Web.33
It is a matter of some debate as to how important blue slips are in the
nomination and confirmation process. The blue slip practice is not a formal part of
the Judiciary Committee’s rules, and the determination of just how much weight to
give to a Senator’s opposition to a nomination is left largely up to the chair of the
committee.34
When James O. Eastland (D-MS) chaired the Judiciary Committee from 1956
to 1978, his policy stated that if he did not get back two blue slips endorsing the
nominee, the nomination would not move further in the process. Other chairs have
said they would give blue slips strong consideration, but that a negative blue slip or
one not returned by a Senator would not necessarily kill a nomination.35 Some
Senators have declined to return a completed blue slip to the committee in an effort
to delay action on the nomination.
Some analysts have said that the blue slip process developed because the Senate
needed to create a process by which Members could register their disapproval if a
President did not involve them enough in the “advice phase” of a nomination. “The
blue slip process is the sanction that a president faces for violating the norm of
senatorial courtesy in the judicial appointment process,” wrote political scientist
Brannon P. Denning36
Senator Paul Laxalt (R-NV) in 1979, defended the blue-slip system in the Senate
during a hearing on the process for confirming federal judges.
One means of effective scrutiny of a candidate is to seek the opinion of the U.S.
Senators of his respective State. For this reason, I presume the committee will
32 National Archives and Records Administration, Record Group 46, Records of the U.S.
Senate, 65th Cong., Records of Executive Proceedings, Nomination Files, Judiciary
Committee, Robert P. Stewart, Blue Slip (1917). Research done by CRS consultant Mitchel
A. Sollenberger.
33 Available at [http://www.usdoj.gov/olp/blueslips1.htm], visited June 4, 2003.
34 Binder, “The Senate as a Black Hole,” pp. 37-40.
35 Brannon P. Denning, “The Judicial Confirmation Process and the BLUE SLIP,”
Judicature, Mar.-Apr. 2002, p. 220.
36 Denning, “The Judicial Confirmation Process and the BLUE SLIP,” p. 223.
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honor the blue-slip system that has worked so well in the past. This is not only
a matter of senatorial courtesy but has on many occasions provided insight on a
nominee not otherwise presented.37
Much also has been written that is critical of the blue-slip system. George
Washington University law professor Jonathan Turley described the system this way:
Blue-slipping is a little known process by which senators can block federal judge
nominees from their state. This means that judges who may rule in your case
often are selected to meet senatorial, not professional, demands. By simply not
returning blue slips sent by the Senate Judiciary Committee, a senator can block
a nominee for the most nefarious or arbitrary reasons, including a personal
grudge, a bargaining tool with the White House or failure of the nominee to be
sufficiently fawning in the senator’s presence.38
“Holds”
A hold is a device by which Senators can block or delay action on a treaty,
nomination or legislation, merely by telling their party leader that they want to delay
floor action on the matter in question. Whether to grant that request is a decision of
the leaders.
Nowhere in the written Senate rules is the tradition of “holds” to be found, and
it is not clear when the practice began. The very nature of the holds process gives the
majority and minority leaders a great deal of discretion in deciding whether to honor
a request for a hold and, if so, for how long. However, implicit in a request for a
hold is the ability of a Senator to use parliamentary tools to filibuster or to delay
consideration of a nomination or legislation. Also implicit in a request for a hold is
the desire of the Senator to be consulted by party leadership on the matter subject to
the hold. Holds can sometimes kill a nomination, but more frequently they delay
action.39
Whether a Senator has placed a hold on a nomination or legislation is not
publicly available information, and the information is closely held by the two party
leaders.40 The only way to know if a particular Senator has placed a hold is if that
Senator decides to announce the information.
Because every Senator can place a hold at any time for any reason, situations
can get complicated with “multiple holds” and “counter holds.” Consider the
following situation:
37 U.S. Congress, Senate Committee on the Judiciary, The Selection and Confirmation of
Federal Judges, hearings, part 1, 96th Cong., 1st sess., Jan. 25, 1979 (Washington: GPO,
1979), p. 5.
38 Jonathan Turley, “Seeing Red on Blue Slips,” Los Angeles Times, May 16, 2001, p. B-13.
39 CRS Report 98-712, “Holds” in the Senate, by Walter J. Oleszek.
40 While the two Senate leaders agreed at the beginning of the 106th Congress to eventually
make holds public, the reality is many holds are still anonymous. See CRS Report 98-712.
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[I]n 1997, then-Senator Carol Moseley-Braun, a Democrat, put a hold
on President Clinton’s nomination of Joe Dial for another term on the
Commodity Futures Trading Commission (CFTC), precluding the
nomination from being voted on before the end of the congressional
session and thereby killing the nomination for good. In retaliation,
Republican Senator Phil Gramm, a friend of Dial’s, maintained as of
the spring of 1998 a hold on two judicial nominees for the state of
Illinois. In retaliation against Gramm’s hold, Illinois’s other
Democratic Senator, Richard Durbin, blocked the Senate’s
consideration of a Republican education bill, pending final Senate
action on the two judicial nominees from Illinois. The logjam ended,
however, at the end of March 1998, when President Clinton agreed to
nominate a Republican to the CFTC seat to which Dial had not been
appointed. Almost immediately thereafter, Senator Gramm released
his hold on the two Illinois judicial nominees, who were easily
confirmed in early April 1998.41
Filibuster
The Senate in most instances allows its Members to debate an issue for as long
as they want. When opponents of a measure or nomination use this ability to try to
prevent final action on the matter at hand, it is generally called a filibuster. It is a
tactic that is frequently used when the Senate is considering legislation.
It is difficult to know exactly when Members of the Senate began to use the
tactic of the filibuster on nominations. Prior to 1929, action on confirmation of
nominations by the full Senate was done in executive (closed) session, open only
occasionally when the Senate voted to do so. Also clouding the issue is the question
of what kinds of actions Senators must take to be considered to be filibustering. Is
it merely lengthy debate or must there be an attempt to use dilatory tactics to slow or
stop consideration of the matter at hand?
One indication of a filibuster is the taking of one or more cloture votes to bring
debate on an issue to an end. (There have also been filibusters where there was no
cloture vote; so, looking at cloture votes provides only a partial picture.)
The Senate adopted the cloture rule in 1917, which then for the first time
provided Members with a way of ending debate. After a lengthy debate in 1949 the
Senate adopted a change to its rules that, in addition to many other things, allowed
the Senate to vote cloture on items of executive business, such as treaties and
nominations. While proponents of the 1949 cloture change talked about the need to
get to a final vote on treaties, they did not mention nominations or any situations they
might have had in mind concerning filibusters of nominations.42 Also, the two most
comprehensive historical analyses of the Senate’s role in advice and consent, one
41 Gerhardt, The Federal Appointments Process, pp. 140-141.
42 “Cloture Rule Debate,” Congressional Record, vol. 95,parts 1-3 (between Jan. 10 through
Mar. 15, 1949), pp. 73-2510.
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published in 1938 and the other in 1953, do not mention the word “filibuster” in
conjunction with nominations.43
One reason could be that the other devices in place in the Senate — the blue slip
and senatorial courtesy — meant that nominations that had problems in the Senate
were stopped before they made it to the floor. Another interpretation is that Senators
did not previously use filibusters against nominations.
One historian found that President Woodrow Wilson’s nominee to be director
of the census was blocked several times in executive (closed) sessions in 1913. Once
it became clear a full filibuster of the nomination was a possibility, supporters of the
nomination agreed to postpone consideration of the nomination until the end of the
fiscal year.44
There are also several examples of parties in the Senate blocking action on a
group of nominations toward the end of a President’s term, particularly when a new
administration from a different party was poised to take power. At the end of the
administration of President Taft, for example, Progressives and Democrats in the
Senate prevented that chamber from going into executive session until Congress
ended, thus killing some 1,300 nominations submitted by President Taft.45
The first clear-cut example of the use of a filibuster against a nomination,
including taking a cloture vote, occurred in 1968 over President Lyndon B. Johnson’s
decision to elevate Associate Supreme Court Justice Abe Fortas to be Chief Justice.
Senators spoke for several days on the motion to proceed to the nomination. The
vote to invoke cloture on the motion to proceed failed, 45-43, on October 1, and, at
Fortas’s request, President Johnson withdrew the nomination on October 4.
There was considerable concern among Senators about whether what they were
doing was establishing a precedent of using a filibuster against a nominee,
particularly one to the Supreme Court. New York Republican Jacob K. Javits said:
It seems to me that the use of the filibuster, which is signaled by the extended
debate now indicated on the motion to take up the nomination, is a matter of
utmost concern to me and to the Nation. I condemn this step unreservedly; the
filibuster has never been used for this purpose, and it is shameful that it may be
so used now. There is ample opportunity afforded in this matter to debate, and
an effort to suffocate the nomination through the filibuster is unwarranted and
destructive, in my judgement, of the national interest and the prestige and
character of the Senate. Those who charged that the President should not have
acted with respect to the appointment at all, notwithstanding his constitutional
duties as President, have a perfect opportunity to test out their case after debating
it by a motion to table the nomination, or by voting against the motion to take it
43 Haynes and Harris.
44 Franklin L. Burdette, Filibustering in the Senate (Princeton: Princeton University Press,
1940), p. 95.
45 Harris, The Advice and Consent of the Senate, p. 94. A similar situation occurred in 1881
with the outgoing administration of President Rutherford B. Hayes and the incoming
administration of James A. Garfield.
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up. But the Senate has the right to vote on the nomination on the merits after
reasonable debate.46
Michigan Democrat Philip A. Hart also spoke in opposition to the filibuster:
To reject the nomination, with all of its implications for the future of the
Supreme Court, is so serious that the matter should be proceeded with on its
merits. If we, for the first time in our history, permit a Supreme Court
nomination to be lost in a fog of a filibuster I think we would be setting a
precedent which would come back to haunt our successors. We tend to overstate
the importance of anything in which we are involved here. I have a lingering
suspicion that history will record this to have been one of the most significant
actions – and I hope it will be action – that the Senate will be confronted with in
the period that many of us have been permitted to sit here. I do hope we will be
permitted to discharge our constitutional responsibility to advise and consent or
not consent.47
Opponents of the Fortas nomination said they believed it was their constitutional
duty to advise and consent, which gave them the right to talk about the nomination
as long as they felt necessary under Rule XXII of the Senate Rules, which sets out the
process for cloture. Tennessee Republican Howard Baker said:
And, so, Mr. President, I am also not overly taken with charges which are made
from time to time in the press and elsewhere, and from time to time on the floor
of this body, that dilatory tactics, sometimes characterized as filibusters,
otherwise extended debate, frequently as obstructionism, but which are clearly
within the framework and scope of the rules of procedure in the Senate, and
particularly rule XXII, are permitting a wilful minority, as one distinguished
daily newspaper characterized it, to obstruct the will of the majority. … It occurs
to me further that it is basic and fundamental to the governing process in a
democracy and consonant with the traditions of this Nation, that at any given
moment the majority is not always right all of the time. And it is clear and
predictable that the people of America, in their compassionate wisdom, require
the protection of the rights of the minority as well as the implementation of the
will of the majority.48
North Carolina Democrat Sam Ervin, who opposed the Fortas nomination and
voted not to end debate on the motion to proceed, defended the use of the filibuster
and cloture procedure:
Mr. President, I think that rule XXII is perfectly constitutional. The Constitution
provides that each House may determine the rules of its proceedings. The Senate
adopted rule XXII in pursuance of that constitutional authority. I think rule XXII
is very wise. It protects a minority which thinks it is right against the tyranny of
46 Sen. Jacob Javits, “Supreme Court of the United States,” Congressional Record, vol. 114,
part 22 (Sept. 26, 1968), p. 28268.
47 Sen. Phillip A. Hart, “Supreme Court of the United States,” Congressional Record, vol.
114, part 22 (Sept. 26, 1968), p. 28252.
48 Sen. Howard Baker, “Supreme Court of the United States,” Congressional Record, vol.
114, part 22 (Sept. 26, 1968), p. 28253.
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the majority. That is very desirable. Majorities need no protection. It is only
minorities which need protection…Rule XXII is needed. It tends to expand the
ability of the minority to convert an erroneous majority to its views. It is a wise
and enlightened process and should be treated with great veneration by all men.49
Including the Fortas nomination, cloture has been sought on 17 judicial
nominations and 22 executive branch nominations between 1968 and 2002.50 On
three of those 41 nominations, the nomination ultimately failed of confirmation:
Fortas; the 1994 nomination of Sam Brown to be ambassador to the Conference on
Cooperation and Security in Europe; and the 1995 nomination of Dr. Henry Foster
to be Surgeon General.51
There has been significant debate about whether filibustering nominations is a
violation of the Constitution’s requirement that the Senate advise and consent to a
nomination.52 Opponents of using filibusters against nominations say that the
Constitution requires the full Senate to act on nominations sent to it by the President
and that the need to win 60 votes to invoke cloture is an unconstitutional super-
majority.53
Those who defend the use of filibusters against nominations note that one of the
dominant themes during debates on the Constitution was how to protect the rights of
the minority, something a filibuster is designed to do. And they note that the Senate
is empowered by the Constitution to set its own rules of procedures.54
49 Sen. Sam Ervin, “Supreme Court of the United States,” Congressional Record, vol.114,
part 22 (Sept. 27, 1968), p. 28585.
50 Cloture has been sought on 17 executive branch nominations plus five executive branch
nominations that received consideration and cloture action concurrently. See CRS Report
RS20801, Cloture Attempts on Nominations, by Richard S. Beth.
51 In 2003, there are two nominations before the Senate that have had cloture votes: the
nomination of Miguel Estrada to a seat on the U.S. Court of Appeals for the District of
Columbia and Priscilla Owen, who was nominated to a seat on the U.S. Court of Appeals
for the 5th Circuit. The Senate has held six cloture votes on Estrada and two on Owen, but
cloture has not been invoked on either nomination.
52 CRS General Distribution Memorandum, Constitutionality of the Senate Filibuster, by Jay
R. Shampansky.
53 Ibid., p. 8.
54 Ibid., p. 8.