Cloture Attempts on Nominations: Data and Historical Development

Contents

• Cloture and the Consideration of Nominations
• Cloture Motions Do Not Correspond With Filibusters
• Frequency of Cloture Attempts on Nominations
• Historical Development of Cloture Attempts on Nominations
• Positions in Relation to Which Cloture Was Sought

Summary

The motion for cloture is available in the Senate to limit debate on nominations, as on other matters. Cloture can, accordingly, be used to overcome a filibuster against a nomination. Table 6 lists all nominations against which cloture has been moved, showing the outcome of the cloture attempt and the final disposition of the nomination. It would be erroneous, however, to treat this table as a list of filibusters on nominations. Filibusters can occur without cloture being attempted, and cloture can be attempted when no filibuster is evident. Often today, moreover, it appears that Senate leaders generally avoid bringing to the floor nominations on which a filibuster seems likely. In such cases there are no means by which to identify the merely threatened filibuster.

Until 1949, cloture could not be invoked on nominations. From then through 2012, cloture was sought on 122 nominations. On 46 of these nominations cloture was invoked, and on 49 others no cloture motion received a vote. All but one of these 95 nominations was confirmed. Only on the remaining 27 nominations did the Senate ultimately reject cloture; of these, 21 were not confirmed.

Until 1968, cloture was moved on no nominations, and from then through 1978, it was moved on only two. Even thereafter, in no single Congress from the 96^th through the 102^nd (1979 through 1992) was cloture sought on more than three nominations, and in no Congress from the 104^th through the 107^th (1995 through 2002) was it sought on more than five. Between these last two periods, however, the 103^rd Congress (1993-1994) foreshadowed a more recent pattern, with cloture action on 12 nominations. Most recently, in every Congress of the past decade (2003 through 2012) except the 110^th, cloture has been attempted on at least 14 nominations. The same five Congresses that saw cloture action on 12 or more nominations are those in which the Senate minority was of the party opposite that of the President.

In all the Congresses or periods identified, no more than a quarter of nominations with cloture attempts failed of confirmation, except in the 108^th Congress (2003-2004), when almost 80% of such nominations (mostly to judicial positions) were not confirmed. Prominent in this Congress were discussions of making cloture easier to get on nominations by changing Senate Rules through procedures not requiring a super-majority vote on cloture. In the 112^th Congress, by contrast, cloture was moved on a record 33 nominations (again mostly to judicial positions), but on 23 of these nominations, no cloture vote ultimately occurred.

Overall, cloture has been sought on nominations to 67 executive and 55 judicial positions. Judicial nominations, however, predominated in the two Congresses just noted and before 2003, except in the 103^rd Congress (1993-1994). In that Congress and the 111^th (2009-2010), both at the beginning of a new presidential Administration, as well as in the 109^th Congress (2005-2006), executive branch nominations predominated.

Few of the nominations on which cloture has been sought have been to positions at the highest levels of the government. These have included four nominations to the Supreme Court and seven to positions in the President's Cabinet (or ones often considered to be at the Cabinet level).

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Cloture Attempts on Nominations: Data and Historical Development

In recent years it has become increasingly common for Senators to seek cloture in order to limit chamber consideration of presidential nominations to positions in the executive and judicial branches of government. Cloture, which requires a super-majority vote, places time limits on consideration of a matter, and so may be employed as a means of overcoming filibusters. This report presents data on all nominations on which cloture motions have been offered (see Table 6). It also presents data on the outcomes of these attempts, the development over time of Senate practice in seeking cloture on nominations, and the positions in relation to which cloture has been offered. Before entering into these discussions, the report sketches some general features of cloture and considerations pertinent to interpreting its meaning.

Cloture and the Consideration of Nominations

Senate Rules place no general limits on how long consideration of a nomination (or most other matters) may last. Owing to this lack of general time limits, opponents of a nomination may be able to use extended debate or other delaying actions to prevent a final vote from occurring. Although a voting majority of Senators may be prepared to vote for a nominee, the nomination cannot be confirmed as long as other Senators, presumably a voting minority, are able to prevent the vote from occurring. The use of debate and procedural actions for the purpose of preventing or delaying a vote is termed a filibuster.¹

The only procedure by which the Senate can vote to place time limits on its consideration of a matter is the motion for cloture provided for in paragraph 2 of Senate Rule XXII. This motion, therefore, is the Senate's most usual means of attempting to overcome a filibuster. When the Senate adopts a motion for cloture on a matter, known as "invoking cloture," further consideration of the matter becomes subject to a time limit, and upon the expiration of that time a vote will occur.² For most matters, the time limit prescribed by the cloture rule is 30 hours, but under a standing order effective only for the 113^th Congress (2013-2014), this 30-hour limit applies to post-cloture consideration of nominations only for the Supreme Court, Circuit Courts of Appeals, heads of Cabinet departments, and a small group of other positions often considered to be of "Cabinet rank." For most other nominations, the standing order limits consideration under cloture to eight hours, and for nominations to U.S. District Courts the post-cloture limit is two hours.³

By invoking cloture, the Senate may be able to ensure that a question will ultimately come to a vote, and can be decided by a voting majority. The Senate, however, can impose the constraints of cloture only by a super-majority vote. For most matters, including nominations, three-fifths of the full Senate (60 votes, if there is no more than one vacancy) is required to invoke cloture. As a result, even if a majority of Senators support a nomination, opponents may still be able to prevent a vote on it by defeating any attempt to invoke cloture, and continuing to extend consideration. The cloture rule permits supporters of a matter to move for cloture repeatedly, but any such motion still can be adopted only with a 60-vote majority. As a result, although any nomination can, itself, always be approved by a simple majority of Senators present and voting, the support of a super-majority may be required to limit consideration and enable the Senate to reach a vote.

Cloture Motions Do Not Correspond With Filibusters

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.

It is possible, as a result, that opponents of a matter may use debate and other procedural actions to delay a vote without supporters deciding to move for cloture. This situation appears not to be common today, but does seem to have occurred in relation to nominations in earlier times. Supporters may refrain from seeking cloture either because they think they lack the votes to obtain it, because they believe they can overcome any delaying actions and reach a vote without resorting to cloture, or because they hope to resolve the matter in dispute by some negotiated accommodation.

On the other hand, leaders of the majority party, or other supporters of a matter, may move for cloture even when opponents deny that they are conducting a filibuster, or at a point when no extended debate or delaying actions have actually occurred. They may do so in response to a threat or perceived threat of a filibuster, or simply in an effort to speed action. Under contemporary conditions, in particular, it has often appeared that Senate leaders attempt to avoid bringing to the floor matters, including legislation as well as nominations, on which they foresee a likelihood that filibusters will occur. These agenda choices may be motivated in part by a desire to avoid expending scarce floor time on matters that cannot be brought to a successful conclusion.

Compounding the potential for misunderstanding, in recent times observers have increasingly extended the use of the term "filibuster" to apply to situations in which opponents of a matter attempt in advance to discourage its consideration on the Senate floor. These situations are also sometimes described as "silent filibusters." They may arise, for example, when Senators inform their respective party floor leaders that they prefer the nomination (or other matter) not to receive floor consideration, an action that has become known as placing a "hold" on a matter. Although a "hold" has no formal procedural force under Senate Rules, it may represent an implicit threat to filibuster that may discourage the majority leader from bringing the matter to the floor.⁴

This newer sense of the term "filibuster" is sharply distinct from the historically better established usage described above, which refers to actions actually taken during floor consideration. Cloture motions cannot be used to identify "filibusters" in the sense of matters withheld from floor consideration, because action under the cloture rule is, itself, something that occurs only in the course of floor proceedings. Except by unanimous consent, indeed, cloture cannot even be moved except on a question already pending on the floor. On matters or which a filibuster is in prospect, as a result, the possibility of cloture can arise only if the leadership determines to bring the matter to the floor despite the possibility of filibuster, and at that point the previously "silent filibuster" either becomes an overt filibuster or fails to materialize.

In recent years, as well, when the possibility of a filibuster is foreseen, the Senate sometimes agrees by unanimous consent to consider a matter under time limits, but require 60 votes for its approval. Under this arrangement, which is occasionally used for nominations, the so-called "60-vote hurdle" or "60-vote threshold" preserves the possibility for a minority (if sufficiently large) to prevent approval, yet the time limit makes it unnecessary to offer any cloture motion. As a result, these cases of potential filibuster also are not identifiable from the presence of cloture motions.

If cloture cannot serve directly as a measure of filibusters, however, neither can any other specific procedural action. A filibuster is a matter of intent; any proceedings on the floor might constitute part of a filibuster if they are undertaken with the purpose of blocking or delaying a vote. Yet any of the procedural actions that might be used to delay or block a vote might also be used as part of a normal course of consideration leading without difficulty to a final decision. As a result, filibusters cannot simply be identified by explicit or uniform criteria, and there is no commonly accepted set of criteria for doing so. Instead, determining whether a filibuster is occurring in any specific case typically requires a degree of subjective judgment.

For all these reasons, it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. It would equally be a misinterpretation to assume that all nominations on which cloture was not sought were not filibustered (especially for periods before 1949, when, as discussed later, it first became possible to move cloture on nominations). This report provides data only on nominations on which cloture motions were offered. It is not to be taken as providing systematic data on nominations that were or were not filibustered. It would not be feasible to develop a list of measures filibustered unless a commonly accepted single standard for identifying what constitutes filibustering could first be established.⁵ At most, the data presented here may be regarded as identifying some potentially likely cases in which a filibuster (by some appropriate definition) may have occurred.

Frequency of Cloture Attempts on Nominations

The Senate first adopted a cloture rule (paragraph 2 of Rule XXII) in 1917. Until 1949, cloture could be moved only on legislative measures; nominations could not be subjected to cloture attempts.⁶ From 1949 through 2012 (81^st through 112^th Congresses), cloture was sought on 122 nominations.⁷ Table 4, following the text of this report, identifies the 122 nominations, the number of separate cloture motions filed on each, the ultimate outcome of the cloture attempt in each case, and the disposition of each nomination. As shown by the summary in Table 1, the Senate invoked cloture on 46 of the 122 nominations on which cloture was moved from 1949 through 2012. On another 48 nominations, cloture motions were offered, but never came to a vote, because the motions were withdrawn or vitiated by unanimous consent, or because they fell (that is, became moot before the cloture vote occurred). On the remaining 27 of the 122 nominations, the Senate voted against imposing cloture.⁸

Of the 122 nominations on which cloture was sought, 100 ultimately won confirmation. The 100 nominations confirmed include all 46 on which the Senate invoked cloture and all but one of the 49 on which no cloture vote occurred.⁹ Even among the 27 nominations on which the Senate voted only against cloture, six were nevertheless able to achieve confirmation (completing the total of 100 nominations confirmed). The remaining 21 nominations on which the Senate ultimately rejected cloture failed of confirmation, in each case because, at some point after the final vote to reject cloture, the nomination was withdrawn from consideration, so that no final vote occurred.

Overall, none of the 22 nominations that failed of confirmation following a cloture motion was rejected by the Senate on an "up-or-down" vote. This pattern is consistent with Senate action on nominations generally; in contemporary practice, nominations that reach a final vote are very seldom rejected.

Historical Development of Cloture Attempts on Nominations

The assertion is sometimes made that filibusters against nominations were infrequent until recent years. Little comprehensive knowledge, however, exists about such filibusters in earlier times. One reason is that until 1929, the Senate normally considered nominations in closed session. Until 1917, moreover, the Senate had no rule for bringing debate on any matter to a close, and even thereafter, the cloture rule did not apply to nominations until 1949. For any earlier years, accordingly, it would not be even possible to try to use cloture as a measure of filibustering on nominations.

Certainly, some historical accounts reference instances of lame duck sessions preceding a change in party control of the presidency in which the Senate generally declined to confirm nominations by the outgoing President. Even in these cases, however, it is not clear that the nominations often failed as a result of filibusters on the floor.

There is, nevertheless, some reason to think that in earlier periods, filibustering on nominations was, indeed, infrequent. It is not clear, however, that this condition prevailed chiefly because Senate practice discouraged filibustering in such cases. Instead, it appears that Presidents often may have submitted nominations only after prior consultation with Senators. There also seems reason to suppose that often, when any Senators strongly objected to a nomination, the Senate might decline to bring the matter to the floor in the first place. The custom of "Senatorial courtesy," under which the Senate would decline to consider a nomination to a position in the home state of a Senator who declared the nomination "personally obnoxious" to him, represented an instance of such practices.¹⁰

To the extent that these suppositions are well founded, it might be said, in effect, that during these earlier periods, obstacles to the confirmation of nominations manifested themselves more often in the form of what today might be called "silent filibusters" than through overt opposition during floor consideration. The prevalence of such situations, of course, could not be ascertained from the examination of floor proceedings.

Even after Senate rules began to permit the use of cloture on nominations in 1949, cloture was sought on none until 1968 (90^th Congress), when a motion to proceed to consider the nomination of Supreme Court Associate Justice Abe Fortas to be Chief Justice was debated at length. After the Senate rejected cloture on the motion to proceed, 45-43, President Lyndon B. Johnson withdrew the nomination. In 1969 and 1970, the nominations of Clement F. Haynsworth and G. Harrold Carswell to the Supreme Court were defeated after lengthy debate, but no cloture motion was filed on either. When the Senate considered the nomination to the Supreme Court of William H. Rehnquist late in the 1971 session, however, cloture was quickly sought. Though the Senate did not invoke cloture (52-42), the nomination was subsequently confirmed.

Cloture was sought on no other nomination until 1980. That occurrence was the first in which cloture was sought on a nomination to an executive branch position, that of William G. Lubbers to be General Counsel of the National Labor Relations Board. Cloture was invoked, and the nomination was confirmed.

In the meantime, the majority required for invoking cloture on most matters, including nominations, had been changed in 1975 from two-thirds of Senators present and voting to three-fifths of the full membership of the Senate (60 votes, assuming no more than one vacancy).¹¹ This change in the rules generally meant that the threshold for invoking cloture was lowered: if all 100 Senators participated in the vote, the previous rule required the votes of 67 to invoke cloture; the new rule normally required 60 votes, regardless of how many Senators participated.

Since 1980, as Table 2 illustrates, the frequency with which nominations have been subjected to cloture attempts has continually tended to increase (a development that parallels a trend in the frequency of cloture motions overall). In this table (and Table 3 below), data on each Congress in which cloture was moved on more than 10 nominations are set forth separately, but data for suitable groups of consecutive Congresses with less frequent cloture action on nominations are consolidated in a single row.

Not only do the data in Table 2 manifest a generally rising trend, but the pattern displayed in Congresses beginning with the 108^th (2003-2004) is sharply distinct from that of earlier ones. From the 90^th through the 107^th Congress (1967-2002), cloture was only once (103^rd Congress, 1993-1994) sought on more than five nominations. In the five Congresses from the 108^th through the 112^th (2003-2012), by contrast, cloture has only once (110^th Congress, 2007-2008) been sought on fewer than 14 nominations.

The 103^rd, 107^th, and 111^th Congresses were each the first of a new presidential Administration, so that the number of nominations to be considered was presumably large. Nevertheless, the new level of nominations with cloture attempts that was reached in the 103^rd Congress remained exceptional until the 108^th Congress, but the pattern of activity from then on has increasingly come to make the 103^rd Congress look like a forerunner of practices that have now become typical. It may also be pertinent, however, that the same five Congresses in which cloture has been sought on 12 or more nominations have also been the only five Congresses since 1987 in which the same political party both occupied the presidency and commanded a Senate majority.¹² This pattern suggests that highly controversial nominations may now be more likely to be brought to the Senate floor if it is the President's party that can set the agenda.

In the 108^th Congress (2003-2004), the pattern of Senate action on nominations on which cloture was sought displayed several distinctive features. This was the Congress during which extensive contestation occurred over attempts to secure confirmation for a series of judicial nominations by President George W. Bush, and the prospect arose that an attempt would be made to change Senate rules for considering nominations through proceedings (known as the "nuclear" or "constitutional option") that would not require super-majority support.¹³

First, the maximum number of cloture motions offered on any single nomination was markedly higher in the 108^th Congress than in any other. Only three times previously had as many as three cloture motions been offered on a single nomination,¹⁴ and only twice subsequently have as many as two cloture motions been offered on the same nomination.¹⁵ In the 108^th Congress, by contrast, one nomination was subjected to seven cloture motions and another to four.¹⁶ These events suggest the intensity with which supporters of these nominations were attempting to secure Senate votes thereon. The more recent pattern, by contrast, suggests that Senate leaders have become less willing to invest extensive floor time on attempts to secure confirmation for nominations that command insufficient support for cloture.

The Senate in the 108^th Congress also rejected cloture with much greater frequency on nominations on which it was moved. In this Congress the Senate ultimately voted against cloture on more than three-quarters of such nominations, which suggests that opponents were persisting in contesting these nominations much more intensely than has otherwise been the case. In all other Congresses (or, when cloture was attempted on only a few nominations in each of several consecutive Congresses, as shown in Table 2, in the group of consecutive Congresses as a whole), the Senate ultimately voted against cloture on no more than one-quarter of the nominations in question. This finding echoes the observation offered earlier that only a few nominations have been blocked by failure to obtain cloture.

Positions in Relation to Which Cloture Was Sought

Over the full period during which cloture motions have been used on nominations, as shown by Table 3, cloture action has occurred on nominations to positions in the judiciary and in the executive branch in roughly comparable numbers. Until the 111^th Congress, however, a majority of the nominations on which cloture was sought had been to positions on the federal bench. This circumstance perhaps reflected the Senate's traditional inclination to permit the President generally wide latitude in selecting officials to serve under him in executive branch positions.¹⁷

More generally, however, the relative emphasis on nominations to positions in the two branches has shifted sharply from one Congress to another. In both of the periods identified in Table 3 that cover several consecutive Congresses, as well as in the 108^th Congress (2003-2004) and the 112^th Congress (2011-2012), nominations to judicial positions were the main focus of cloture action. In the 103^rd (1993-1994), 109^th (2005-2006), and 111^th (2009-2010) Congresses, cloture motions on executive branch nominations were more prevalent. It is perhaps pertinent that the 103^rd and 111^th Congresses both included the period immediately following the inauguration of a new President, when presumably there were a large number of nominations to positions in the new Administration. By contrast, Congresses in which a greater number of judicial nominations were subjected to cloture motions all fell after the beginning of a new presidential Administration.

As already observed, the only period during which cloture attempts on either class of nominations were rejected far more often than they were either invoked or abandoned occurred in connection with the broad struggle over President George W. Bush's judicial nominations in the 108^th Congress (2003-2004). Either cloture was invoked, or no vote occurred, in especially high proportions on executive branch nominations in the 109^th (2005-2006) and 111^th (2009-2010) Congresses. On an especially high proportion of judicial nominations on which cloture was attempted in the 112^th Congress (2011-2012), no cloture votes ultimately occurred, suggesting that cloture might have been moved on many of these nominations in response to perceived threats of filibuster that did not materialize or, perhaps, that proved susceptible of negotiated resolution.

Few of the nominations on which cloture has been attempted have been to positions of the first rank in the federal government. Only four have been to the Supreme Court, as shown in Table 4, and only seven to the heads of Cabinet departments or other positions sometimes accorded Cabinet rank by the President, as shown in Table 5. In relation to offices at lower levels of the executive branch, it can be discerned from Table 6 that cloture attempts have occurred particularly often on nominations to positions in the Department of State and the Department of Justice.

Acknowledgments

Earlier versions of this report were co-authored by [author name scrubbed], analyst on Congress and the Legislative Process. Ms. Palmer has retired from CRS. To the analysis presented in the present version, contributions were made by [author name scrubbed], specialist on Congress and the Legislative Process, [author name scrubbed], analyst on Congress and the Legislative Process, and Maeve Carey, analyst in Government Organization and Management, all in the Government and Finance Division of CRS.

Key Policy Staff

Footnotes

1.	Filibusters and cloture are discussed more generally in CRS Report RL30360, Filibusters and Cloture in the Senate, by [author name scrubbed] and [author name scrubbed]. The process by which the Senate considers nominations is discussed more generally in CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by [author name scrubbed], and CRS Report RL31948, Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History, by [author name scrubbed].
2.	Senate Rule XXII, paragraph 2, in U.S. Senate, Committee on Rules and Administration, Senate Manual, Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, S.Doc. 112-1, 112th Cong., 2nd sess., prepared by Matthew McGowan under the direction of Jean Parvin Bordewich, staff director (Washington: GPO, 2011), sec. 22.2. During the 30 hours, no single Senator, other than the party floor leaders, the managers of the debate, or Senators to whom any of these may yield time, may occupy more than one hour in debate.
3.	This standing order was established by sec. 2 of S.Res. 15 of the 113th Congress, adopted January 25, 2013. For more detailed information on this standing order, see CRS Report R42996, Changes to Senate Procedures in the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16), by [author name scrubbed].
4.	For further information on holds, see CRS Report 98-712, "Holds" in the Senate, and CRS Report RL31685, Proposals to Reform "Holds" in the Senate, both by [author name scrubbed].
5.	These questions of method are discussed in more detail in [author name scrubbed], "What We Don't Know About Filibusters," paper presented at the annual meeting of the Western Political Science Association, Portland, Ore., March 1995 (available from the author).
6.	U.S. Congress, Senate, Committee on Rules and Administration, Senate Cloture Rule: Limitation of Debate in the Congress of the United States and Legislative History of Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule), S.Prt. 112-31, prepared by the Congressional Research Service, Library of Congress, 112th Cong., 1st sess. (Washington: GPO, 2011), pp. 17, 20-21, 185-192.
7.	For purposes of this report, five State Department nominations considered concurrently by unanimous consent are counted as one, and each instance in which a single individual was concurrently nominated to two positions is counted as one.
8.	The data include all cloture action in relation to a nomination, whether the motion was offered to close debate on the nomination itself or on a debatable motion to proceed to its consideration (which did not occur in practice after 1980).
9.	In the final case, on the nomination of Richard Stickler to be an Assistant Secretary of Labor in the 109th Congress (2006-2007), the cloture motion was withdrawn and the nomination was not confirmed.
10.	See G. Calvin Mackenzie, "Senatorial Courtesy," in Donald C. Bacon, Roger H. Davidson, and Morton Keller, eds., The Encyclopedia of the United States Congress, vol. 4 (New York: Simon & Schuster, (c)1995), pp. 1794-1795.
11.	Committee on Rules and Administration, Senate Cloture Rule, pp. 29-31, 60, 199-208.
12.	The five Congresses in question are the 103rd, 108th, 109th, 111th, and 112th. The Republican Party lost control of the Senate during the 1st session of the 107th Congress in 2001, at the beginning of the first term of President George W. Bush.
13.	For discussions of the possibilities for such proceedings, see CRS Report R42929, Procedures for Considering Changes in Senate Rules, and CRS Report RL32843, "Entrenchment" of Senate Procedure and the "Nuclear Option" for Change: Possible Proceedings and Their Implications, both by [author name scrubbed].
14.	The three nominations were those of Don Zimmerman to be member of the National Labor Relations Board in 1980; William A. Lubbers to be its General Counsel in the same year; and Sam Brown, the former antiwar activist, to be Ambassador during his tenure as Head of Delegation to the Conference on Security and Cooperation in Europe in 1994. Only in the third case was cloture ultimately rejected and the nomination not confirmed.
15.	The two nominations were those of John R. Bolton to be U.S. Representative to the United Nations in 2005 and Mari Carmen Aponte to be Ambassador to El Salvador in 2011. Only in the first case was cloture ultimately rejected and the nomination not confirmed.
16.	The two nominations were, respectively, those of Miguel A. Estrada and Pricilla Richman Owen to be Circuit Court Judges. In both cases, cloture was ultimately rejected and the nomination not confirmed.
17.	This point is discussed, for example, in Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (Durham: Duke University Press, 2003), pp. 132-133.