Cloture Attempts on Nominations

Cloture Attempts on Nominations

Order Code RS20801
Updated December 11, 2002
CRS Report for Congress
Received through the CRS Web
Cloture Attempts on Nominations
Richard S. Beth
Specialist in the Legislative Process
Government and Finance Division
Summary
Cloture is the only means by which the Senate can vote to limit debate on a matter,
and thereby overcome a possible filibuster. Until 1949, cloture could not be invoked on
nominations, and before 1980 this action was attempted only twice. From 1949 through
2002, cloture was sought on 35 nominations, and invoked on 21. Only three of the 35
nominees were not confirmed; all three were among those on whom the Senate rejected
cloture. Except in the 103rd Congress (1993-1994), most of the nominations involved
have been judicial. The 103rd and 107th Congress are the only ones in which cloture was
sought on more than three nominations.
This report is to be updated at the end of each Congress in which additional
nominations are subjected to cloture attempts. Filibusters and cloture are discussed
more generally in CRS Report RL30360, Filibusters and Cloture in the Senate.
Relation Between Cloture Attempts and Filibusters
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 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 dilatory actions
for such a purpose is a filibuster.
The motion for cloture is the only procedure by which the Senate can vote to place
time limits on its consideration of a matter. It is therefore the Senate’s most usual means
of attempting to overcome a filibuster. When the Senate adopts a cloture motion on a
matter, known as “invoking cloture,” further consideration of the matter is limited to 30
Congressional Research Service ˜ The Library of Congress

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hours.1 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 cloture rule permits Senators to move for cloture repeatedly, if necessary. 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, or 60 votes, is
required. 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.
It would be incorrect to assume that situations in which cloture is sought correspond
completely with those in which filibusters occur. Even if opponents attempt to block a
nomination through delaying tactics, supporters may decide not to move for cloture. This
situation is perhaps uncommon today, but does seem to have occurred in relation to
nominations. Conversely, supporters of a nomination may move for cloture, in order to
speed action, even when opponents may not consider themselves to be conducting a
filibuster against it, or when they may have only threatened, but not actually conducted,
a filibuster.
Since filibusters may be conducted through a variety of tactics, there are no specific
actions that definitively indicate the occurrence of a filibuster, much less of a mere threat
to filibuster. To this extent, the presence of cloture attempts may at least be a readily
available means for attempting to identify some cases in which filibusters may have
occurred.
Nominations on Which Cloture was Sought
The Senate first adopted a cloture rule in 1917. Until 1949, cloture could be moved
only on legislative measures, and nominations could not be subjected to cloture attempts.2
From 1949 through 2002 (81st-107th Congresses), cloture was sought on 35 nominations.3
Table 3 identifies the 35 nominations, the number of cloture motions filed on each, the
outcome of the cloture attempt, and the disposition of each nomination. Many of these
nominations have been to clearly secondary or subordinate positions; only three have been
to the Supreme Court, and one to the President’s Cabinet.
1 Senate Rule XXII, paragraph 2. 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. 106-1, 106th Cong., 1st sess., prepared by Lory Breneman
under the direction of Tamara S. Somerville, Staff Director (Washington: GPO, 2000), sec. 22.2.
During the 30 hours, no single Senator, other than the party floor leaders and the managers of the
debate, may occupy more than one hour in debate.
2 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), committee print
S. Print 99-95, prepared by the Congressional Research Service, Library of Congress, 99th Cong.,
1st sess. (Washington: GPO, 1985), pp. 17, 21, 38-39, 105-112.
3 For these purposes five State Department nominations considered concurrently are counted as
one, and the nomination of one individual to two positions is counted as one.

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Table 1. Cloture Attempts and Action on Nominations

Cloture
Action on Nomination
Action
Confirmed
Not confirmed
Invoked
21
0
No vote
7
0
Rejected
4
3
Source: Table 3.
As shown by the summary in Table 1, the Senate invoked cloture on 21 of these 35
nominations. On another seven, cloture motions were offered, but never came to a vote.
On the remaining seven, the Senate voted only against imposing cloture.
All 21 nominations on which cloture was invoked were confirmed. Of the 14
nominations on which cloture was sought but not invoked, 11 were confirmed. Only three
of the 35 nominees ultimately failed of confirmation, and on all three of these the Senate
had rejected cloture. These were:
! Justice Abe Fortas to be Chief Justice in 1968,
! Sam Brown to be Ambassador in 1994, and
! Dr. Henry Foster to be Surgeon General in 1995.
Historical Development of Cloture Attempts on Nominations
Even after Senate rules began to permit cloture on nominations, cloture was sought
on none until 1968, when a motion to proceed to consider the nomination of Supreme
Court Justice Abe Fortas to be Chief Justice was debated at length. After the Senate
rejected cloture, 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. In the meantime, in 1975,
the majority required for cloture on most matters, including nominations, was changed
from two-thirds of Senators present and voting to three-fifths of the full membership of
the Senate (normally 60).4 The 1980 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 in this case
and the nomination was confirmed.
4 Committee on Rules and Administration, Senate Cloture Rule, pp. 30-32, 53-54, 119-121.

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Cloture has never been sought on more than three nominations in the same Congress,
except for 12 in the 103rd (1993-1994) and five in the 107th (2001-2002). Each of these
Congresses was the first of a new presidency, so that the number of nominations to be
considered was presumably especially large. The 103rd Congress was also the only one
between 1981 and 2000 in which the presidency, Senate, and House were all controlled
by the same political party. In that Congress, cloture was invoked on but four of the 12
nominations where attempted, a much lower proportion than for other Congresses.
Of the 12 nominations on which cloture action occurred during the 103rd Congress,
10 were for executive branch positions. Except in that Congress, most nominations on
which cloture has been sought have been to judicial positions. This circumstance perhaps
reflects the Senate’s traditional inclination to permit the President generally wide latitude
in selecting officials to serve under him in executive branch positions. Table 2
summarizes the outcomes of cloture action on executive and judicial nominations before,
in, and after the 103rd Congress.
Table 2. Cloture Action on Judicial and Executive Nominations
by Time Period
Judicial
Executive
Congresses
and (years)
Cloture
Cloture Not
Cloture
Cloture Not
Invoked
Invoked
Invoked
Invoked
90th-102nd (1967-1992)
5
3a
4
0
103rd (1993-1994)
1
1
3
7a
104th-107th (1995-2002)
5
2
3
1a
TOTAL
11
6
10
8
Source: Table 3.
a. On one nomination in each of these groups, cloture was ultimately rejected and the nominee was not
confirmed. All other nominees were confirmed.

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Table 3. Nominations Subjected to Cloture Attempts, 1968-2002
(Executive branch nominations in roman; Judicial nominations in italic)
Congress
Cloture
Outcome
Disposition
and Year
Nominee
Position
Motions
of Cloture
of
Filed
Attempt
Nomination
90th, 1968
Abe Fortas
Chief Justice
1
rejected
withdrawn
92nd, 1971
William H. Rehnquist
Associate Justice
2
rejected
confirmed
96th, 1980
William A. Lubbers
General Counsel,
3
invoked
confirmed
National Labor
Relations Board
96th, 1980
Don Zimmerman
Member, National
3
invoked
confirmed
Labor Relations
Board
96th, 1980
Stephen G. Breyer
Circuit Judge
2
invoked
confirmed
98th, 1984
J. Harvie Wilkinson
Circuit Judge
2
invoked
confirmed
99th, 1986
Sidney A. Fitzwater
District Judge
1
invoked
confirmed
99th, 1986
Daniel A. Manion
Circuit Judge
1
withdrawn
confirmed
99th, 1986
William H. Rehnquist
Chief Justice
1
invoked
confirmed
100th, 1987
Melissa Wells
Ambassador
1
invoked
confirmed
100th, 1987
C. William Verity
Secretary of
1
invoked
confirmed
Commerce
102nd, 1992
Edward Earl Carnes,
Circuit Judge
1
invoked
confirmed
Jr.
103rd, 1993
Walter Dellinger
Assistant Attorney
2
rejected
confirmed
General
103rd, 1993
five nominations a
State Department
2
rejected
confirmed
103rd, 1993
Janet Napolitano
U.S. Attorney
1
invoked
confirmed
103rd, 1994
M. Larry Lawrence
Ambassador
1
fell b
confirmed
103rd, 1994
Rosemary Barkett
Circuit Judge
1
withdrawn
confirmed
103rd, 1994
Sam Brown
Ambassador
3
rejected
returned to
president
103rd, 1994
Derek Shearer
Ambassador
2
invoked
confirmed
103rd, 1994
Ricki Tigert
Board Member and
2
invoked
confirmed
Chair, Federal
Deposit Insurance
Corporation c
103rd, 1994
H. Lee Sarokin
Circuit Judge
1
invoked
confirmed

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Congress
Cloture
Outcome
Disposition
and Year
Nominee
Position
Motions
of Cloture
of
Filed
Attempt
Nomination
103rd, 1994
Buster Glosson
Air Force Lieutenant
1
withdrawn
confirmed
General (retired)
103rd, 1994
Claude Bolton, Jr.
Air Force Brigadier
1
vitiated d
confirmed
General
103rd, 1994
Edward P. Barry, Jr.
Air Force Lieutenant
1
vitiated d
confirmed
General (retired)
104th, 1995
Henry Foster
Surgeon General
2
rejected
no final vote
105th, 1997
Joel I. Klein
Assistant Attorney
1
invoked
confirmed
General
105th, 1998
David Satcher
Surgeon General
1
invoked
confirmed
106th, 1999
Brian Theadore
District Judge
1
rejected
confirmed
Stewart
106th, 2000
Marsha L. Berzon
Circuit Judge
1
invoked
confirmed
106th, 2000
Richard A. Paez
Circuit Judge
1
invoked
confirmed
107th, 2002
Lavenski R. Smith
Circuit Judge
1
invoked
confirmed
107th, 2002
Richard R. Clifton
Circuit Judge
1
invoked
confirmed
107th, 2002
Richard H. Carmona
Surgeon General
1
invoked
confirmed
107th, 2002
Julia Smith Gibbons
Circuit Judge
1
invoked
confirmed
107th, 2002
Dennis W. Shedd
Circuit Judge
1
vitiated d
confirmed
Sources: Compilations by CRS and by the Senate Library; Legislative Information System of the U.S. Congress; U.S.
Congress, Senate, Committee on Rules and Administration, Senate Cloture Rule, committee print 99-95, 99th Cong., 1st
sess. (Washington: GPO, 1985), pp. 44-70, 78-85; Congressional Record (Daily Digest); and Congressional Quarterly
Almanac for 1986, 1987, 1992, 1995, 1999.
Notes:
a. These five nominations to various positions in the State Department received consideration and cloture action
concurrently, and are counted as one case in the table.
b. Cloture motion became moot and received no action.
c. Tigert was nominated simultaneously for these two positions, and cloture action took place on each nomination in turn;
the table counts these events as one case.
d. Senate unanimously consented to treat the cloture motion as having no effect.